State v. McGilvery

• Decision Date: 26 November 1898
• Citation: 20 Wash. 240,55 P. 115
• Parties: STATE v. McGILVERY.
• Court: Washington Supreme Court

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.

M. O. Reed (Fullerton & Ettinger, of counsel), for appellant.

John W. Mathews, Pros. & Co. Atty. (Hanna & Hanna of counsel), for the state.

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 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 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; (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 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 question, and the whole question, is essentially one of procedure merely. The constitution of this state (article 1, § 25), provides that 'offenses heretofore required to be prosecuted by indictment may be prosecuted by information or by indictment, as shall be prescribed by law.' Under this provision the question of procedure is left to the legislature; and, if it can be ascertained that the procedure which was adopted in this case has legislative sanction, it is idle for the courts to concern themselves with the question of policy involved in the legislation. Referring, then, to the question of whether an information can be legally filed against a person who is not under indictment or in custody or on bail when the court is in session, and the grand jury of the county is not in session, it seems to us that subdivision 4 of section 6802 (1204), supra, contemplates that it may be, and cannot apply to any other state of facts. Unless we so interpret it, the subdivision is meaningless. If we construe that subdivision to mean that a preliminary examination of the accused must precede the filing of the information, we have the condition contemplated by subdivision 1 of the same section, and subdivision 4 becomes superfluous. This view is further strengthened by a consideration of subdivision 5 of the section, which provides: 'When a person has been committed by a magistrate for any felony or misdemeanor,' etc., whether the court is in session or not at the time it is filed. Counsel is in error in supposing that this court held in State v. Anderson, 5 Wash. 350, 31 P. 969, that, before an information could be filed, both the fact that there was no grand jury in session, and also the further fact that the defendant had had a preliminary examination, must be shown to exist. The syllabus to the opinion in that case does not correctly indicate what was decided upon that point, the reporter there having used the copulative 'and,' instead of the disjunctive 'or,' in referring to the two conditions to which the statute relates. ^[1] We conclude that the point made be the counsel against the filing of the information was not well taken.

2. The next contention is that the information does not charge a public offense, and that the defendant's demurrer should have been sustained. In support of this assignment, it is urged--First. That the information does not directly and with certainty charge a purpose or intent to carnally know each other. Second. That the information is bad because it does not allege that the attempt charged failed in commission because of some inability of the actors to carry out their purpose, or because they were prevented or intercepted in the perpetration thereof; in other words, it is urged that the information should negative the presumption that the actors ceased of their own volition. And, third, that the information is bad because it does not allege knowledge on the part of Carrie Barnett of the relationship between herself and the defendant. Coming to the consideration of these objections in the order in which they are stated, it may, in general, be conceded that an attempt to constitute a crime contains two elements,--an evil intention, and a simultaneous resulting act, which, if fully performed, would constitute a substantive crime. We think that, while an intent to carnally know each other is not directly averred in the present information, it is the necessary and irresistible inference to be derived from the language that is employed; and, if such be the fact, it meets the requirements of the law in regard to criminal pleading. It charges that they did, at a certain time and place, 'willfully * * * attempt carnally to know each other,' and that the acts then described and set forth in...