State v. Johnson

• Decision Date: 18 April 1944
• Docket Number: 29235.
• Citation: 20 Wn.2d 494,148 P.2d 320
• Parties: STATE v. JOHNSON
• Court: Washington Supreme Court

148 P.2d 320

20 Wn.2d 494

STATE v. JOHNSON

No. 29235.

Supreme Court of Washington

April 18, 1944

Department 1.

Charles H. Johnson was convicted of unlawfully dealing in and leasing slot machines in violation of Rem.Rev.Stat. § 2472-1, and he appeals.

Judgment reversed and cause remanded with directions.

MALLERY J., dissenting.

Appeal from Superior Court, King County; Clay Allen, Judge.

Vanderveer Bassett & Geisness, of Seattle, for appellant.

Lloyd Shorett and Attwood A. Kirby, both of Seattle, for respondent.

BLAKE, Justice.

By information, defendant was charged in separate counts with four different violations of the Laws of 1937, chapter 119 p. 468, § 1 (Rem.Rev.Stat. (Sup.) § 2472-1). Count one, which is typical of the others, charged that defendant 'wilfully, unlawfully. and feloniously did deal in and lease to the Houghs Creamery * * * in the City of Seattle * * * a machine of a kind commonly used for gambling, to wit: a slot machine * * *.' (Italics ours.) Defendant demurred to the information and to each count on the ground of duplicity and indefiniteness. The demurrer was overruled. Defendant stood trial without introducing any evidence in his own behalf. A verdict of guilty having been returned on each count, he interposed a motion in arrest of judgment. The court denied the motion entered judgment on the verdict and imposed sentence. Defendant appeals.

The assignments of error challenge the information for duplicity and indefiniteness, and the sufficiency of the evidence to sustain the verdict.

The evidence was wholly insufficient to sustain the verdict on the charge that appellant 'did * * * lease' any slot machines. Likewise, the evidence was insufficient to sustain the verdict on the charge that he 'did deal in' slot machines in the light of what we regard as the generally accepted definition of the term 'dealer,' which is: one who buys and sells personal property with a profit objective. State v. Silverman, 75 N.H. 50, 70 A. 1076; Delaware & H. Canal Co.'s Case, 8 Pa.Co.Ct.R. 496; People v. Stevens, 10 Cal.App.2d Supp. 763, 51 P.2d 1179; J. H. Allison & Co. v. Killough, 156 Tenn. 294, 300 S.W. 5; Egan v. State, Tex.Cr.App., 68 S.W. 273; In re I. Rheinstrom & Sons Co., D. C., 207 F. 119; State v. Rosenbaum, 80 Conn. 327, 68 A. 250, 15 L.R.A.,N.S., 288, 125 Am.St.Rep. 121.

Respondent relies on the following definitions of 'deal': 'To act as an intermediary in business or any affairs; to manage; to make arrangements; to negotiate.' Webster's New International Dictionary (1919, subd. 8). "Deal' is not a technical term * * *. It has been defined as meaning an arrangement to attain a desired result by a combination of interested parties; a secret arrangement, as in business or political bargains; also an act of buying and selling; a bargain.' 25 C.J.S. Deal, p. 1039.

Accepting any one of these definitions and conceding the evidence sufficient to sustain the verdict under it, then the information must be held fatally defective because it did not set up facts sufficient to inform appellant in what manner the state would attempt to prove that he dealt in slot machines.

The Laws of 1937, chapter 119, upon which the prosecution is based is entitled: 'An Act relating to slot machines, defining crimes, prescribing penalties for violation thereof, and declaring that this act shall take effect immediately.' The pertinent part of the act is contained in § 1, which provides:

'Every person who shall bring into this state, buy, sell, lease, deal in, have in his possession, acquire for the use in or keep in any building or boat or part thereof owned, leased, or occupied by him as a public place * * * any slot machine of a kind commonly used for gambling * * * shall be guilty of a felony.'

Gauged by the standard set up in the decision of this court in Seattle v. Molin, 99 Wash. 210, 169 P. 318, there can be no doubt that the information in this case is duplicitous and fatally indefinite. In that case, the prosecution was upon a complaint based upon an ordinance which according to appellant's brief, provided:

"It shall be unlawful for any person * * * to manufacture, sell, barter, exchange, give away, furnish or otherwise dispose of any intoxicating liquor; or to buy, receive or keep any intoxicating liquor with intent to sell, barter, exchange, give away, use, furnish, or otherwise dispose of the same; or to buy, accept or receive the same; or for any person, other than a licensed druggist or pharmacist or a person keeping alcohol to be used for mechanical or chemical purposes only, to have in his possession more than one-half gallon or two quarts of liquor other than beer, or more than twelve quarts or twenty-four pints of beer, for any purpose whatever; * * *" The complaint was couched in the terms of the ordinance. Holding it duplicitous and indefinite, the court said, 99 Wash. at page 211, 169 P. at page 319:

'It will be seen the respondents were accused of unlawfully: (1) Manufacturing certain intoxicating liquor; (2) selling, bartering, exchanging, giving away, furnishing and disposing of certain intoxicating liquor; (3) buying, receiving, and keeping certain intoxicating liquor with intent to sell, barter, exchange, give away, furnish, and dispose of the same; (4) buying, accepting, and receiving certain intoxicating liquor without specific intent; (5) having in their possession more than one-half gallon or 2 quarts of liquor other than beer, and more than 12 quarts or 24 pints of beer, not being licensed druggists or pharmacists, or persons keeping alcohol to be used for mechanical or chemical purposes.

'Rem. & Bal. Code, § 2057, provides:

"The indictment or information must be direct and certain, as it regards * * * the crime charged.'

'Section 2065 provides:

"The indictment or information is sufficient if it can be understood therefrom * * * that the act or omission charged as the crime is clearly and distinctly set forth in ordinary and concise language, without repetition and in such a manner as to enable a person of common understanding to know what is intended.'

'Section 2059 provides:

"The indictment or information must charge but one crime, and in one form

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