State v. Morton, 43025
| Decision Date | 13 June 1974 |
| Docket Number | No. 43025,43025 |
| Citation | 523 P.2d 199,83 Wn.2d 863 |
| Parties | STATE of Washington, Appellant, v. John MORTON, Respondent. |
| Court | Washington Supreme Court |
Henry R. Dunn, Pros. Atty., James Warme, Deputy Pros. Atty., Kelso, for appellant.
Walstead, Mertsching, Husemoen, Donaldson, & Barlow, Don L. Donaldson, Longview, for respondent.
The defendant (respondent), John Morton, an elementary school principal in the Woodland School District No. 404, was charged with criminal offenses in four counts of an amended information filed in the Superior Court for Cowlitz County. Count 1 accused the defendant of committing the crime of asking or receiving a bribe (RCW 9.18.020), and charged that the defendant was a person who 'executes functions of a public officer' and had unlawfully received $120 as compensation from ALTA Industries, Inc., for an agreement, or understanding that his opinion, judgment, decision and action would be influenced to assist and promote the sale of certain office furniture to the Woodland School District. Count 2 of the amended information accused the defendant of committing the crime of misconduct of a public officer (RCW 42.20.010), and charged that the defendant had been beneficially interested in the office furniture purchase referred to in count 1.
On a different set of facts, count 3 of the amended information accused the defendant of the crime of grand larceny, charging that: (1) the defendant had the possession, custody and control, as administrator, of the Woodland Junior High School associated student body fund; (2) he wilfully, and with intent to deprive the owners of the fund thereof, appropriated the sum of $250; and (3) he used said funds to purchase golf clubs for his own personal use. Count 4 in the amended information, charging the defendant with misappropriation and falsification of accounts by a public officer, is not at issue on this appeal.
The defendant entered pleas of not guilty to the counts in the amended information, and a trial before a jury was set for January 22, 1973. The defendant made a motion to dismiss counts 1 and 2 on the grounds that the defendant was not a public officer, and prior to the trial, before the selection of the jury, the trial judge heard the arguments of counsel and granted the defendant's motion. After the state had presented its evidence, the defendant moved for an order of dismissal of count 3, which was, in effect, granted by the trial judge the following day on the ground that the state had not presented a prima facie case against the defendant on the charge of grand larceny. On February 7, 1973, the order of dismissal was entered, and the State of Washington (appellant) thereafter appealed.
The state contends that the trial court erred in granting the defendant's motion to dismiss counts 1 and 2 before evidence was introduced in support of the charges in the information. We agree.
The statute which the defendant is charged with violating in count 1 is as follows (RCW 9.18.020):
Every executive or administrative officer or person elected or appointed to an executive or administrative office who shall ask or receive, directly or indirectly, any compensation, gratuity or reward, or any promise thereof, upon an agreement or understanding that his vote, opinion or action upon any matter then pending, or which may be law be brought before him in his official capacity, shall be influenced thereby . . . and every judicial officer, And every person who executes any of the functions of a public office not hereinbefore specified . . . who shall ask or receive, directly or indirectly, any compensation, gratuity or reward, or any promise thereof, upon an agreement or understanding that his vote, opinion, judgment, action, decision or other official proceeding shall be influenced thereby, or that he will do or omit any act or proceeding or in any way neglect or violate any official duty, shall be punished by imprisonment in the state penitentiary for not more than ten years, or by a fine of not more than five thousand dollars, or by both.
(Italics ours.)
The statute which the defendant is charged with violating in count 2 is the following (RCW 42.20.010):
Every public officer who shall--
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(2) Be beneficially interested, directly or indirectly, in any contract, sale, lease, or purchase which may be made by, through or under the supervision of such officer, in whole or in part, or which may be made for the benefit of his office, or accept, directly or indirectly, any compensation, gratuity, or reward from any other person beneficially interested therein . . .
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Shall be guilty of a gross misdemeanor . . . RCW 9.01.010, in terms of definition, states:
In construing the provisions of this act, save when otherwise plainly declared or clearly apparent from the context, the following rules shall be observed:
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(24) The words 'officer' and 'public officer' shall include all assistants, deputies, clerks and employes of any public officer and all Persons exercising or assuming to exercise any of the powers or functions of a public officer.
(Italics ours.)
Under the law in this jurisdiction, the sufficiency of an information or indictment upon which an accused is charged may be properly challenged in some cases by a motion to dismiss. In considering the sufficiency of an information or indictment, however, we must keep in mind the rule that there is no presumption in favor of a pleading charging a crime. Such a pleading must be definite and certain. State ex rel. Clark v. Hogan, 49 Wash.2d 457, 303 P.2d 290 (1956).
In the instant case the defendant at no time properly challenged the sufficiency of the information upon the ground that it failed to state a crime, State v. Newson, 8 Wash.App. 534, 507 P.2d 893 (1973), or that the information was too indefinite or uncertain to enable the accused to prepare his defense, State v. Royse, 66 Wash.2d 552, 403 P.2d 838 (1965), or upon any other irregularity or defect in the amended information. Nor did the defendant allege that the statutes, upon which the offenses were based, were unconstitutional. Rather, the defendant was apprised of the nature of both offenses by being charged in the language of the statutes which created the crimes in question. The language in count 1 is as follows:
(A)ccuses JOHN MORTON of the crime of Asking Or Receiving A Bribe, committed as follows: He, the said JOHN MORTON on or about the 4th day of March, 1971, A.D., in the County of Cowlitz, State of Washington, and then and there being, did then and there unlawfully and feloniously receive compensation upon an agreement or understanding with another That his opinion, judgment, decision and action as a person who executes functions of a public officer shall be influenced thereby, to-wit: Said John Morton, an elementary school principal in the Woodland School District, No. 404, did receive One Hundred Twenty and No/100 ($120.00) Dollars from ALTA Industries, Inc. as compensation for an agreement, or understanding that said John Morton's opinion, Judgment, decision and action would be influenced to assist and promote the sale of office furniture to said School District, said act occurring in Cowlitz County, Washington; contrary to the Statute in such cases made and provided and against the peace and dignity of the State of Washington.
(Italics ours.)
Clearly the language of count 1, asserting that the defendant is a public official and exercises the duties of a public officer, comes within the language of RCW 9.18.020. Likewise, as to count 2, the language of the charge comes within the ambit of prohibition of RCW 42.20.010. In this case the defendant has failed to properly raise any objections concerning infirmities in the information upon which he could prevail before this court, and we therefore hold that the allegations in the information are well pleaded.
The defendant, however, argues that his motion for dismissal should have been granted by the trial court since he is not a public officer under counts 1 and 2 of the information, nor is he in any respect employed as a public officer. The defendant contends that he is a school teacher who in no manner exercises the duties of a public officer. We believe the defendant's motion is untimely in this case since the motion was, in effect, a challenge to the sufficiency of the evidence before any evidence had been...
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State v. Kjorsvik
...there is no presumption of validity for a charging document that fails to state all of the elements of an offense. State v. Morton, 83 Wash.2d 863, 866, 523 P.2d 199 (1974); State v. Moser, 41 Wash.2d 29, 31, 246 P.2d 1101 (1952). Yet the majority's rule that the charging document is to be ......
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State v. Knapstad
...court to dismiss the prosecution prior to trial for insufficient evidence. Contrary to the assertion of the State, State v. Morton, 83 Wash.2d 863, 523 P.2d 199 (1974) is not controlling. In Morton the defendant asked the trial court to decide a disputed factual question of whether the defe......
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State v. Maurer
...court was powerless to act. The sufficiency of a charge may be challenged in a proper case by a motion to dismiss. ( State v. Morton, 83 Wash.2d 863, 523 P.2d 199 (1974)), and the trial court has inherent power to dismiss for insufficiency of the charge. State ex rel. Clark v. Hogan, 49 Was......
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State v. Knapstad, 15123-1-I
...and paraphernalia. The State concedes that the evidence presented at the hearing constituted its case in chief. In State v. Morton, 83 Wash.2d 863, 523 P.2d 199 (1974), the trial court dismissed two counts of asking or receiving a bribe before any evidence had been presented by the State on......