State v. Murie

• Decision Date: 28 July 1926
• Docket Number: 19940.
• Citation: 248 P. 79,140 Wash. 71
• Parties: STATE v. MURIE.
• Court: Washington Supreme Court

248 P. 79

140 Wash. 71

STATE v. MURIE.

No. 19940.

Supreme Court of Washington

July 28, 1926

Department 1.

Appeal from Superior Court, Snohomish County; Ralph C. Bell, Judge.

Russell E. Murie was convicted of burglary in the second degree, and he appeals. Affirmed.

A. E. Dailey and E. C. Dailey, both of Everett, for appellant.

C. T Roscoe, John C. Richards, and Charles R. Denney, all of Everett, for the State.

HOLCOMB J.

Appellant was convicted and sentenced upon an information charging him with burglary in the second degree.

The charging part of the information is as follows:

'He, the said Russell E. Murie, in the county of Snohomish, state of Washington, on or about the 2d day of January, 1926, did then and there feloniously and unlawfully enter the dwelling house of another, to wit, the dwelling house of R. W. Green, situated in Snohomish county, state of Washington, with the intention then and there to commit a crime therein, then and there being, the said Russell E Murie did feloniously and unlawfully break and enter a building of another, to wit, a house owned by R. W. Green wherein property was kept for use and deposit, situated in Snohomish county, state of Washington, with the intent then and there to commit a crime therein. * * *'

When the case was called for trial, appellant moved the court that the state be required to elect upon which state of facts set forth in the information it would proceed to trial, which motion was denied.

After conviction, appellant moved in arrest of judgment, and also for a new trial.

The first error claimed is that the information is duplicitous, and charges no crime at all, because, under the statute, in force it is required that the information state but one crime. Section 2579, Rem. Comp. Stats., provides:

'Every person who, with intent to commit some crime therein shall, under circumstances not amounting to burglary in the first degree, enter the dwelling house of another or break and enter, or, having committed a crime therein, shall break out of, any building or part thereof, or a room or other structure wherein any property is kept for use, sale or deposit, shall be guilty of burglary in the second degree. * * *'

Another statutory provision, (section 2580, Rem. Comp. Stats.) is as follows:

'Every person who shall unlawfully break and enter or unlawfully enter any building or structure enumerated in sections 2578 and 2579 shall be deemed to have broken and entered or entered the same with intent to commit a crime therein unless such unlawful breaking and entering or unlawful entry shall be explained by testimony satisfactory to the jury to have been made without criminal intent.'

The rule is well established in this state that under our statutes the same crime may be charged in any or all of the ways prescribed by statute that are not repugnant to each other. State v. McBride, 72 Wash. 390, 130 P. 486. One or all of the series of acts constituting the crime may be charged in the same indictment or in the same information, and constitute but one offense. State v. Newton, 29 Wash. 373, 70 P. 31; State v. Wappenstein, 67 Wash. 502, 121 P. 989; State v. Pettit, 74 Wash. 510, 133 P. 1014.

In the last-cited case we held that, where the statute defining a crime specified different ways in which it might be committed, connecting the same with the disjunctive 'or,' the information might charge the alternative means connecting the same with the conjunction 'and.' That case was a prosecution for grand larceny, alleged to have been committed in either of two different methods. It followed the language of the statute, however, as does the information in the present case. The statutes respecting such matters were there referred to, and we there said:

'Section 2601 (P. C. 135, § 695), being a section of the Criminal Code of 1909, defines the crime of larceny, and in its subdivisions specifies varying ways in which such crime may be committed. Giving consideration to the language of the statute, it appears that the Legislature therein intended to define but one crime, that of larceny, and to state the different ways in which the crime might be committed. The information charges the crime with which the defendant is charged with having been committed in two of the ways specified in the statute: (1) By color and aid of false and fraudulent representations; and (2) by a bailee or trustee. * * * The general rule is that, where a single offense may be committed in different ways or by different means, it may be charged in the information to have been committed by more than one of the ways or means, provided the ways or means charged be not repugnant to each other. In State v. O'Neil, 51 Kan. 651, 33 P. 287, 24 L. R. A. 555, it is said, quoting from Bishop's Criminal Procedure: 'We have seen that, if an offense may be committed by different means, and the pleader doubts which was employed in the particular instance, he may in one count charge its commission by all, and proof of any one will sustain the allegation. The limit to this doctrine is, that the means must not be repugnant.'

We have applied this rule to a great variety of cases: See State v. McBride, 72 Wash. 390, 130 P. 486; State v. Gaul, 88 Wash. 295, 152 P. 1029; State v. Wingard, 92 Wash. 219, 158 P. 725; State v. Klein, 94 Wash. 212, 162 P. 52; State v. Brummett, 98 Wash. 182, 167 P. 120; State v. Roberts, 100 Wash. 493, 171 P. 225; State v. Parker, 114 Wash. 428, 195 P. 229; State v. Hennessy, 114 Wash. 351, 195 P. 211; State v. Larson, 120 Wash. 559, 207 P. 1052.

Nor is it necessary, in a prosecution for burglary, under our statute to allege what offense was intended by the accused to be committed in the premises at the time of the unlawful entry, as contended by appellant. State v. Lewis, 42 Wash. 672, 85 P. 668.

It developed during the trial that the house alleged to have been burglarized was not constantly occupied as a dwelling house, but was used more as a summer residence. The court therefore limited the consideration of the jury to the allegation in the information that appellant 'did feloniously and unlawfully break and enter the building of another, to wit, a house owned by R. W. Green, wherein property was kept...