State v. McGilvery

CourtUnited States State Supreme Court of Washington
Writing for the Court[20 Wash. 244] GORDON, J.
Citation20 Wash. 240,55 P. 115
Decision Date26 November 1898
PartiesSTATE v. McGILVERY.

55 P. 115

20 Wash. 240

STATE
v.
McGILVERY.

Supreme Court of Washington

November 26, 1898


Appeal from superior court, Whitman county; William McDonald, Judge.

Archie McGilvery was convicted of an attempt to commit incest, and appeals. Affirmed.

[20 Wash. 241] M. O. Reed (Fullerton & Ettinger, of counsel), for appellant.

[20 Wash. 243] John W. Mathews, Pros. & Co. Atty. (Hanna & Hanna, of counsel), for the state.

[20 Wash. 244] GORDON, J.

The defendant appeals from the judgment of the superior court for Whitman county. The information upon which he was tried and convicted is as follows: 'Comes now John W. Mathews, prosecuting and county attorney for the county of Whitman, state of Washington, the court being in session, and the grand jury of said county not being in session, and by this his information accuses Archie McGilvery of the crime of attempting to commit incest with one Carrie Barnett, committed as follows, to wit: That the said Archie McGilvery and [20 Wash. 245] Carrie Barnett, in the county of Whitman, in the state of Washington, on the 9th day of November, eighteen hundred and ninety-seven, then and there being, did then and there willfully, unlawfully, feloniously, and incestuously attempt to carnally know each other, by then and there being in bed together; she, the said Carrie Barnett, then and there lying and being on her back, and he, the said Archie McGilvery, then and there lying and being on top of her, the said Carrie Barnett; and they, the said Archie McGilvery and Carrie Barnett, while so lying and being, did then and there have their sexual organs placed together for the aforesaid purpose of carnally knowing each other; she, the said Carrie Barnett, then and there being the daughter of one Nancy E. McGilvery; she, the said Nancy McGilvery, then and there being the wife of him, the said Archie McGilvery; she, the said Carrie Barnett, then and there being the wife's daughter of him, the said Archie McGilvery; the said Archie McGilvery then and there having knowledge of the relationship existing between the said Archie McGilvery and the said Carrie Barnett; the said Archie McGilvery and the said Carrie Barnett then and there being within the degrees of affinity in which marriages are prohibited by the laws of the state of Washington.'

The first ground of error alleged is that the trial court was without jurisdiction, for the reason that no preliminary examination of the defendant was had to ascertain whether there was probable cause to believe him guilty of [55 P. 116] the offense. This point was ruled against defendant's contention in State v. Williams, 13 Wash. 335, 43 P. 15; but we have been urgently requested to reconsider the question, and have done so. Section 6802, 2 Ballinger's Ann. Codes & St. (section 1204, 2 Hill's Code), provides that public offenses may be prosecuted in the superior court by information in the following cases: '(1) Whenever any person is in custody or on bail on charge of felony or misdemeanor, and the court is in session, and the grand jury is not in session, or has been discharged; [20 Wash. 246] (2) whenever an indictment presented by a grand jury has been quashed, and the jury returning the same is not in session, or has been discharged; (3) when a cause has been appealed to the supreme court, and reversed on account of any defect in the indictment; (4) whenever a public offense has been committed, and the party charged with the offense is not already under indictment therefor, and the court is in session, and the grand jury is not in session, or has been discharged; (5) whenever the court is in session, or not in session, and any person has been committed by any committing magistrate for any felony or misdemeanor not within the exclusive jurisdiction of a justice's peace court.' The information in the present case alleges that the court was in session, and the grand jury not in session, at the time when it was filed, and it is not contended that the defendant was then under indictment; therefore the case would seem to fall under subdivision 4 of section 6802 (1204), supra. But counsel argue that the prosecuting officer cannot officially know that 'a public offense has been committed,' unless there has been a preliminary determination of the fact made by some authorized person, or some court of inquiry having power to inquire concerning the accusation; also, that the words of subdivision 4, viz. 'and the party charged with the offense,' are sufficient to indicate that a 'charge' or 'accusation' must be made prior to the filing of the information. And counsel, with much ability, have argued that to give prosecuting officers authority to cause the arrest of a citizen, and to put him on trial before a jury before such an officer is required to exhibit to the accused any evidence in support of the allegations upon which the charge is based, would be conferring a power dangerous to individual liberty, and subject to great abuse. But we think that experience has demonstrated that such apprehensions are not well founded; and it is not believed that prosecuting attorneys are less to be trusted with the [20 Wash. 247] responsibility of instituting criminal proceedings than police magistrates or justices of the peace. The painstaking, conscientious prosecutor will never institute a criminal charge unless he possesses what is believed to be sufficient competent evidence to establish the guilt of the party accused. It is not doubted that a grand jury might find an indictment where no preliminary examination of the person indicted has been had, and the indictment might well be, and frequently is, obtained without the knowledge of the defendant. The fact, however, never has been considered sufficient to prevent a trial upon the indictment. The...

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19 practice notes
  • State v. Kirwin, No. 28972–9–III.
    • United States
    • Court of Appeals of Washington
    • February 23, 2012
    ...has also long applied in criminal cases. E.g., State v. Willis, 153 Wash.2d 366, 374–375, 103 P.3d 1213 (2005); State v. McGilvery, 20 Wash. 240, 251, 55 P. 115 (1898). Thus, when the prosecution alleges an extraneous element in a charging document and then undertakes to prove that addition......
  • State v. McCall, No. 48310
    • United States
    • United States State Supreme Court of Iowa
    • April 7, 1954
    ...8 Ann.Cas. 908; People v. Murray, 14 Cal. 159; People v. Gleason, 99 Cal. 359, 33 P. 1111; Cox v. People, 82 Ill. 191; State v. McGilvery, 20 Wash. 240, 55 P. 115; 27 Am.Jur., Incest, section 8; 42 C.J.S., Incest, § 9; 16 Am. & Eng.Ency. of Law, 2d Ed. 141. See also 75 C.J.S., Rape, § [245 ......
  • State v. Kirwin, No. 28972-9-III
    • United States
    • Court of Appeals of Washington
    • February 23, 2012
    ...doctrine has also long applied in criminal cases. E.g., State v. Willis, 153 Wn.2d 366, 374-375, 103 P.3d 1213 (2005); State v. McGilvery, 20 Wash. 240, 251, 55 P. 115 (1898). Thus, when the prosecution alleges an extraneous element in a charging document and then undertakes to prove that a......
  • State v. Winslow, 1691
    • United States
    • Supreme Court of Utah
    • May 12, 1906
    ...authorities generally hold that on a charge of incest the defendant may be convicted of an attempt to commit incest. ( State v. McGilvery, 20 Wash. 240, 55 P. 115; [30 Utah 410] People v. Gleason, 99 Cal. 359, 33 P. 1111, 37 Am. St. Rep. 56; State v. Decker, 36 Kan. 717, 14 P. 283; State v.......
  • Request a trial to view additional results
19 cases
  • State v. Kirwin, No. 28972–9–III.
    • United States
    • Court of Appeals of Washington
    • February 23, 2012
    ...has also long applied in criminal cases. E.g., State v. Willis, 153 Wash.2d 366, 374–375, 103 P.3d 1213 (2005); State v. McGilvery, 20 Wash. 240, 251, 55 P. 115 (1898). Thus, when the prosecution alleges an extraneous element in a charging document and then undertakes to prove that addition......
  • State v. McCall, No. 48310
    • United States
    • United States State Supreme Court of Iowa
    • April 7, 1954
    ...8 Ann.Cas. 908; People v. Murray, 14 Cal. 159; People v. Gleason, 99 Cal. 359, 33 P. 1111; Cox v. People, 82 Ill. 191; State v. McGilvery, 20 Wash. 240, 55 P. 115; 27 Am.Jur., Incest, section 8; 42 C.J.S., Incest, § 9; 16 Am. & Eng.Ency. of Law, 2d Ed. 141. See also 75 C.J.S., Rape, § [245 ......
  • State v. Kirwin, No. 28972-9-III
    • United States
    • Court of Appeals of Washington
    • February 23, 2012
    ...doctrine has also long applied in criminal cases. E.g., State v. Willis, 153 Wn.2d 366, 374-375, 103 P.3d 1213 (2005); State v. McGilvery, 20 Wash. 240, 251, 55 P. 115 (1898). Thus, when the prosecution alleges an extraneous element in a charging document and then undertakes to prove that a......
  • State v. Winslow, 1691
    • United States
    • Supreme Court of Utah
    • May 12, 1906
    ...authorities generally hold that on a charge of incest the defendant may be convicted of an attempt to commit incest. ( State v. McGilvery, 20 Wash. 240, 55 P. 115; [30 Utah 410] People v. Gleason, 99 Cal. 359, 33 P. 1111, 37 Am. St. Rep. 56; State v. Decker, 36 Kan. 717, 14 P. 283; State v.......
  • Request a trial to view additional results

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