State v. Kosanke, 29561.

• Court: United States State Supreme Court of Washington
• Writing for the Court: GRADY, Justice.
• Citation: 160 P.2d 541,23 Wn.2d 211
• Parties: STATE v. KOSANKE.
• Decision Date: 28 June 1945
• Docket Number: 29561.

160 P.2d 541

23 Wn.2d 211

STATE
v.
KOSANKE.

No. 29561.

Supreme Court of Washington

June 28, 1945

Department 1.

Reinhold Kosanke was convicted of indecent assault and exposure to a female person under age of fifteen years, and he appeals.

Affirmed.

[23 Wn.2d 212] Appeal from Superior Court, Adams County; Matt Driscoll, judge. [160 P.2d 542]

Michael J. Kerley, of Spokane, for appellant.

Edward C. Cross, of Ritzville, for respondent.

GRADY, Justice.

The appellant, Reinhold Kosanke, was charged in an amended information with the crime of indecent assault and exposure as defined by Laws of 1937, chapter 74, § 2, Rem.Rev.Stat.Supp. § 2442. A trial Before a jury resulted in a verdict of guilty, and from the judgment entered thereon the defendant has taken an appeal to this court.

By the act of 1937 the legislature amended certain sections of the criminal statutes and define three different crimes: (1) Carnal knowledge of children; (2) indecent assault and exposure; (3) crime against nature. The title of the act is as follows: 'An Act relating to the crimes of carnal knowledge of children, crime against nature and indecent assault and exposure and amending sections 2436, 2442 and 2456 of Remington's Revised Statutes.'

The amended information charged a violation of subdivision 2 of § 2 of the act which reads as follows: 'Every person who shall take any indecent liberties with or on the person of any female under the age of fifteen years, or make any indecent, or obscene exposure of his person, or of the person of another, whether with or without his or her consent, shall be guilty of a felony, * * *.' and was to the effect that appellant took indecent liberties with or on the person of a named female child and in her presence did at the same time make an indecent exposure of his person. Rem.Rev.Stat. § 2458, also penalizes the making of any open and indirect or obscene exposure of his person or of the person of another and makes the offense a gross misdemeanor.

By demurrer and other challenges to its sufficiency throughout the trial appellant contended that the amended [23 Wn.2d 213] information was duplicitous in that it charged him with two felonies under one statute--taking indecent liberties with or on the person of a female under the age of fifteen years and making an indecent or obscene exposure of his person to her; also with a gross misdemeanor by making an open and indecent or obscene exposure of his person under another statute.

An examination of the statutes referred to and the amended information discloses that no attempt was made to charge appellant with a violation of § 2458, Rem.Rev.Stat. That statute relates to indecent or obscene exposure generally, while § 2442 (2), Rem.Rev.Stat.Supp., is limited to indecent or obscene exposure to female persons under the age of fifteen years. The amended information therefore is not open to the attack that it is duplicitous in that it charges offenses under § 2442 and § 2458.

In passing upon a claim of duplicity in an information we must have in mind that there are two classes of criminal statutes to be considered. One class defines a specific crime, or makes a certain act or acts a felony or misdemeanor, or either, or both, and provides different ways in or means by which the crime may be committed, all in one statute, and the other class may set forth several distinct acts and make the commission of each a separate crime, all in one statute.

There are many cases decided by this court in which we have construed statutes as falling within one class or the other. It is pointed out in them that in determining the question there may be many factors that will aid the court, such as the title of the act; whether there is a readily perceivable connection between the various acts set forth; whether the acts are consistent with and not repugnant to each other; and whether the acts may inhere in the same transaction. It would serve no useful purpose to cite all of the cases bearing on this subject, but illustrations of the first class of statute are to be found in State v. Pettit, 74 Wash. 510, 133 P. 1014; State v. Gipson, 92 Wash. 646, 159 P. 792; State v. Powers, 152 Wash. 155, 277 P. 377; State v. Hull, 182 Wash. 681, 48 P.2d 225; State v. St. [23 Wn.2d 214] Clair, 21 Wash.2d 407, 151 P.2d 181, and of the other in Seattle v. Molin,...