State v. Klein

• Decision Date: 22 April 1905
• Citation: 80 P. 770,38 Wash. 475
• Parties: STATE v. KLEIN.
• Court: Washington Supreme Court

80 P. 770

38 Wash. 475

STATE v. KLEIN.

Supreme Court of Washington

April 22, 1905

Appeal from Superior Court, King County; W. R. Bell, Judge.

Chris Klein was convicted of grand larceny, and he appeals. Affirmed.

See 78 P. 137.

Frank S. Griffith, for appellant.

W. T Scott and Chas. S. Gleason, for the State.

DUNBAR, J.

The appellant was charged by the prosecuting attorney of King county with the crime of grand larceny. The information omitted the formal part, was as follows: 'Chris Klein is hereby accused * * * of the crime of grand larceny, committed as follows, to wit: He, the said Chris Klein, in the county of King, state of Washington, on the 22nd day of June, 1903 wilfully, unlawfully, and feloniously the personal property of the Frye-Bruhn Company, a corporation, consisting of one hundred and eleven (111) head of sheep, of the value of four ($4.00) dollars each, making a total value of four hundred and forty-four ($444.00) dollars, did take, steal, lead and drive away.' To this information the defendant filed a demurrer on the grounds (1) that the information did not conform to the requirements of the Code; (2) that said information charged two crimes. The demurrer was overruled and the cause proceeded to trial. At the close of the testimony the defendant moved to dismiss the case on the ground that the information charges two crimes, which motion was overruled, and exception taken. Defendant also moved the court to discharge the jury on the ground of misconduct which motion was overruled, and exception taken. The jury returned a verdict of guilty of grand larceny. At the time of the reception of the verdict the defendant objected to its being received on the ground that, except the signature, it was prepared by the clerk instead of the jury. The objection was overruled, and exception allowed. Motion for new trial was presented and overruled, and judgment rendered.

The errors alleged are (1) in overruling the demurrer to the information; (2) in trying the defendant under the statute relative to grand larceny; (3) in refusing to dismiss the charge of grand larceny; (4) in refusing to discharge the jury for misconduct prejudicial to defendant; (5) in instructing the jury regarding grand larceny; (6) in receiving and filing the verdict.

The first contention is that section 7113, 2 Ballinger's Ann. Codes & St. (an act complete in itself, fixing a special punishment), repealed section 7108, 2 Ballinger's Ann. Codes & St., as to the kinds of property named in section 7113, and that the prosecution of defendant, if at all, ought to have been under section 7113, which gave to the court a discretion as to the kind of punishment which should be meted out; that section 7113, having made the stealing of sheep a distinct offense, directly took the same out of the provisions of the law with reference to grand and petit larceny, and made the same a separate defense. The appellant cites to sustain this contention the cases of State v. Young, 13 Wash. 584, 43 P. 881, and Tacoma Mill Co. v. Perry, 32 Wash. 650, 73 P. 801. These cases do not sustain appellant's contention. All that was decided in State v. Young was that, in an information charging larceny of cattle, it was not necessary that the value of the stolen cattle should be alleged. Tacoma Mill Co. v. Perry was a civil action, and does not bear out appellant's contention.

It is also insisted that the information is bad for duplicity, and several cases are cited in sustentation of that contention. But these cases also, we think, simply state the undisputed law that two distinct crimes cannot be charged in one information, each of which constitutes a separate offense under the law. The first case cited ( State v Dorsett, 21 Tex. 656) was where the defendant was charged with willfully and negligently permitting the escape, etc.; and it was held that the indictment was obnoxious to the objection of duplicity, but especially on the ground that voluntary and negligent escapes were made by the statute distinct offenses; that they...