State v. Moser

• Decision Date: 07 August 1952
• Docket Number: No. 31957,31957
• Citation: 41 Wn.2d 29,246 P.2d 1101
• Parties: STATE, v. MOSER.
• Court: Washington Supreme Court

Page 29

41 Wn.2d 29

246 P.2d 1101

STATE, v. MOSER.

No. 31957.

Supreme Court of Washington, Department 1.

Aug. 7, 1952.

Fred M. Bond, South Bend, for appellant.

James E. Duree, Robert A. Hannan, Raymond, for respondent.

WEAVER, Justice.

By information, defendant was charged with three counts:

'Count 1. That the said George Moser in the County of Pacific, State of Washington, at Willapa River on the 17th day of October, 1949, did then and there unlawfully use, operate and maintain a set net.

'Count 2. That the said George Moser in the County of Pacific, State of Washington, at Willapa River on the 17th day of October, 1949, did take and fish for salmon for commercial purposes in the Willapa River Preserve * * * being a violation of * * * a rule or regulation adopted by the director of fisheries of the State of Washington * * *

'Count 3. That said George Moser in the County of Pacific, State of Washington, at Willapa River on the 17th day of October, 1949, did knowingly and willfully resist the arrest by a Fisheries Inspector of the State of Washington.'

The trial court withdrew count I from consideration by the jury after introduction of evidence. The jury found defendant guilty on count II and count III. Upon appeal to this court, we ordered a new trial. State v. Moser, 37 Wash.2d 911, 226 P.2d 867.

Before the second trial, count I was dismissed. The jury acquitted defendant on count II. It convicted him on count III. Judgment and sentence were entered. Defendant appeals, and assigns as error the failure of the trial court to dismiss count III at various stages of the proceeding, including the denial of a motion in arrest of judgment, upon the ground that count III did not state facts sufficient to constitute a crime.

Count III is a prosecution for a purported violation of RCW 75.08.190, Rem.Supp. 1949, § 5780-218a:

'The director, and any fisheries inspector, or deputy fisheries inspector, shall have authority to arrest, without writ, order or process, any person in the act of violation any of the provisions of this title, or any of the rules, regulations or orders made by the director, and they are hereby made peace officers. If any person knowingly or wilfully resists or opposes such officer in the discharge of his duties or aids and abets such resistance or opposition, he shall be guilty of a gross misdemeanor and shall be fined not less than two hundred and fifty dollars ($250).'

The elements of an offense under this statute are: (1) knowing or willful resistance, (2) to the director, inspector or deputy fisheries inspector, (3) in the discharge of his duties under the 'title.' Fisheries code of the state of Washington.

In addition to other requirements, in order to charge a crime, an information must satisfy subdivision (6) of RCW 10.37.050:

'(6) The act or omission charged as the crime is clearly and distinctly set forth in ordinary and concise language, without repetition, and in such a manner as to enable a person of common understanding to know what is intended'.

It is sufficient, in charging a crime, to follow the language of the statute, where such crime is there defined, and the language used is adequate to apprise the accused with reasonable certainty of the nature of the accusation. State v. Forler, 38 Wash.2d 39, 227 P.2d 727 and cases therein cited. However, count III does not follow the language of RCW 75.08.190. When such is the case, the information must then satisfy certain rules heretofore established.

There is no presumption in favor of a pleading charging a crime. Such a pleading must be definite and certain. State v. Odell, 38 Wash.2d 4, 227 P.2d 710. While it is not fatal to an information that the precise language of the statute was not followed, words conveying the same meaning and import must be employed. State v. Knowlton, 11 Wash. 512, 39 P. 966. A person of common understanding, State v. Ternan, 32 Wash.2d 584, 203 P.2d 342 should be able to read what is intended and to understand the charge, under the statute, from the face of the information. But, before we can apply the 'common understanding rule' we must first determine whether or not the information charges all of the statutory elements of the particular crime involved. State v. Unosawa, 29 Wash.2d 578, 188 P.2d 104.

When we apply the foregoing tests to count III of the information before us, we reach the conclusion that count III does not charge a crime under RCW 75.08.190.

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