State v. Muller

• Decision Date: 09 July 1914
• Docket Number: 11886.
• Parties: STATE v. MULLER.
• Court: Washington Supreme Court

141 P. 910

80 Wash. 368

STATE v. MULLER.

No. 11886.

Supreme Court of Washington

July 9, 1914

Department 1. Appeal from Superior Court, Island County; John M Ralston, Judge.

Pete Muller was convicted of bringing intoxicating liquor into local option territory, and he appeals. Reversed.

James Zylstra, of Coupeville, for appellant.

D. W Craddock, of Coupeville, for the State.

ELLIS, J.

The defendant was arrested upon an information charging:

'That on or about the 3d day of July, 1913, in the county of Island, state of Washington the said defendant, Pete Muller, then and there being, did then and there unlawfully and willfully bring into a unit of Island county, state of Washington, within which the sale of intoxicating liquor was then and there unlawful and prohibited by law, intoxicating liquor, to wit, more than one gallon of spirituous liquor contrary to the statute in such case made and provided, and against the peace and dignity of the state of Washington.'

To this information the defendant demurred. The demurrer was overruled. The defendant pleaded not guilty, was tried, and by the jury, found guilty as charged. He thereupon moved for a new trial, which was denied. A motion in arrest of judgment was then interposed. This also was overruled. Judgment was entered upon the verdict, and the defendant was sentenced to pay a fine of $100 and costs. He prosecutes this appeal.

We shall not notice the particular grounds of the demurrer and the motions for a new trial and in arrest of judgment, nor the many assignments of error, further than to say that they are sufficient to present three contentions to which the appellant mainly confines his argument, and a consideration of which must be decisive of the case. They are as follows (1) That the information does not substantially conform to the requirements of the law; (2) that the facts charged do not constitute a crime; (3) that the court committed prejudicial error in his instructions to the jury.

1. It is contended that the information does not substantially conform to the legal requirement of certainty, in that it fails to name the particular unit into which the liquor, if any, was brought. The information was drawn under Rem. & Bal. Code, § 6309, defining the crime, and section 6310, prescribing the requisites of the information or indictment. Section 6309, so far as here material, in substance, provides that it shall be unlawful for any person to bring any intoxicating liquor into 'any unit in which the sale of intoxicating liquor is forbidden under the provisions of this chapter' (chapter 81, Laws 1909), and that 'whoever shall * * * knowingly violate any of the provisions of this section shall, upon conviction thereof, be fined,' etc. These provisions are followed by certain provisos not here involved. It will be noted that the information practically follows the language of the statute. It is charged that the appellant brought intoxicating liquor into 'a unit of Island county' in which the sale of such liquor was then and there unlawful and prohibited by law. No particular unit is specified. The evidence shows that, within the contemplation of the local option law, there are three units in Island county (Rem. & Bal. Code, § 6292), and that two of these units were, on July 3, 1913, 'dry' units. We will take judicial notice of the fact that in the larger and more populous counties of the state there are many units. But for the next section (section 6310), prescribing the requisites of the information or indictment, there could be no question that this information would be insufficient. The statute defines the crime by the use of the generic term 'a unit.' In such a case an information using the same generic terms of the statutory definition is insufficient as stating a conclusion. It must be more specific than the statute, and state such particulars as will bring the act of the person charged within the generic terms, and notify him of the specific act charged. Our Constitution (section 22, art. 1) declares:

'In criminal prosecutions the accused shall have the right * * * to demand the nature and cause of the accusation against him. * * *'

In U.S. v. Cruikshank, 92 U.S. 542, 557, 558 (23 L.Ed. 588) a leading case upon this subject, the Supreme Court of the United States, touching the similar provision in the federal Constitution, said:

'In criminal cases, prosecuted under the laws of the United States, the accused has the constitutional right 'to be informed of the nature and cause of the accusation.' Amendment 4. In United States v. Mills, 7 Pet. 142 , this was construed to mean that the indictment must set forth the offense 'with clearness and all necessary certainty, to apprise the accused of the crime with which he stands charged'; and in United States v. Cook, 17 Wall. 174 , the 'every ingredient of which the offense is composed must be accurately and clearly alleged.' It is an elementary principle of criminal pleading that, where the definition of an offense, whether it be at common law or by statute, 'includes generic terms, it is not sufficient that the indictment shall charge the offense in the same generic terms as in the definition; but it must state the species--it must descend to particulars.' 1 Arch. Cr. Pr. & Pl. 291. The object of the indictment is, first, to furnish the accused with such a description of the charge against him as will enable him to make his defense, and avail himself of his conviction or acquittal for protection against a further prosecution for the same cause; and, second, to inform the court of the facts alleged, so that it may decide whether they are sufficient in law to support a conviction, if one should be had. For this, facts are to be stated, not conclusions of law alone. A crime is made up of acts and intent, and these must be set forth in the indictment, with reasonable particularity of time, place, and circumstances.'

It seems clear, therefore, that our constitutional provision, which is couched in almost the same terms as the similar provision of the Constitution of the United States, requires that the information in this case, notwithstanding the general terms of the statute, should state the particular unit into which it is intended to charge the appellant with having brought intoxicating liquor. The state, however, contends that this particularity of allegation is wholly dispensed with by section 6310, prescribing the essentials of the indictment or information. That section reads as follows:

'Prosecutions for violations of this chapter may be by information or indictment. In any such prosecution it shall not be necessary to state the kind of intoxicating liquor sold, nor to describe the place where sold, nor to show the knowledge of the principal in order to convict for the acts of any agent or servant, nor to state the name of any person to whom such liquor is sold, nor to set forth the evidence showing that the required number of qualified electors petitioned for the submission to the electors of the question whether intoxicating liquor should be sold in the unit where the violation is alleged to have occurred, nor that a majority of the qualified electors voted against the sale of liquor within such unit, but in all cases it shall be sufficient to state that the act complained of was committed in a unit in which the sale of intoxicating liquor was prohibited, and that such act was then and there prohibited and unlawful.'

In construing this...