State v. Myrberg

• Decision Date: 17 December 1909
• Citation: 56 Wash. 384,105 P. 622
• Parties: STATE v. MYRBERG.
• Court: Washington Supreme Court

105 P. 622

56 Wash. 384

STATE v. MYRBERG.

Supreme Court of Washington

December 17, 1909

Department 1. Appeal from Superior Court, Chelan County; Wm. A Grimshaw, Judge.

Ludwig Myrberg was convicted of rape, and appeals. Affirmed.

Crass &amp Porter, for appellant.

Fred Kemp and Ludington & Kemp, for the State.

MORRIS, J.

Appellant was informed against and convicted of rape upon Frieda Johnson, a female child of the age of nine years. He brings this appeal, and predicates error upon the holding of the court below that the information was sufficient as against his demurrer, and his objection to the introduction of testimony, and in denying his motions for discharge, for new trial, and in arrest of judgment. Other assignments of error will be referred to later. The charging part of the information as to the time the crime was committed was 'on a certain day before the filing of this information within three years next preceding its filing.'

The errors above alleged all raise the same question: Was the time properly and sufficiently charged. We think it was. Our statutes relative to this question are as follows: 'The precise time at which the crime was committed need not be stated in the indictment or information; but it may be alleged to have been committed at any time before the finding of the indictment or the filing of the information, and within the time in which an action may be commenced therefor except where the time is a material ingredient in the crime.' Ballinger's Ann. Codes & St. § 6845 (Pierce's Code, § 2098). 'The indictment or information is sufficient if it can be understood therefrom * * * (5) That the crime was committed at some time previous to the finding of the indictment or filing of the information, and within the time limited by law for the commencement of an action therefor.' Ballinger's Ann. Codes & St. § 6850 (Pierce's Code, § 2103). 'Prosecutions for the offenses of murder and arson, where death ensues, may be commenced at any period after the commission of the offenses; for offenses the punishment of which may be imprisonment in the penitentiary, within three years after their commission.' Ballinger's Ann. Codes & St. § 6780 (Pierce's Code, § 1538). Under a subsequent section the penalty for conviction of the crime of rape is fixed at imprisonment in the penitentiary for life or any term of years. Ballinger's Ann. Codes & St. § 7062 (Pierce's Code, § 1581). The limitation for an information for rape was therefore three years, and the information charging the commission of the crime 'within three years next preceding its filing,' was a sufficient compliance with these statutes. We think it better to allege a specific day when such allegation is possible; but it doubtless will ofttimes occur, as in this case, where the child was of tender years and had no knowledge or memory of the calendar day, that it would be impossible to fix a specific day. Even though the information had fixed a specific day, it would not be contended that the commission of the act proved upon any other day within the statute of limitations would not be a sufficient and proper time under the information. The case is controlled by State v. Gottfreedson, 24 Wash. 388, 64 P. 523, where a similar charge as to time was held sufficient. The rule there announced is supported by abundant authority; it being generally held that the day upon which an offense is committed or charged to be committed is immaterial, except in those offenses where time is of the essence of the crime or a necessary ingredient in its description. State v. Barnett, 3 Kan. 250, 87 Am. Dec. 471; Conner v. State, 25 Ga. 515, 71 Am. Dec. 184; People v. Miller, 12 Cal. 291; People v. Jackson, 111 N.Y. 362, 19 N.E. 54; Kenney v. State, 5 R. I. 385; State v. Findley, 77 Mo. 338; Myers v. State, 121 Ind. 15, 22 N.E. 781; State v. Swaim, 97 N.C. 462, 2 S.E. 68; State v. Peters, 107 N.C. 876, 12 S.E. 74; McCarty v. State, 37 Miss. 411.

The name of the injured child as given in the information was 'Frieda.' Her father, a witness for the state, testified her name was 'Valfreda.' Counsel for appellant hereon bases his contention that there was a fatal variance between the information and the proof. The testimony of the father was that in Holland, from whence the family came, the name was 'Valfreda,' but that since being in this country she was called and known as 'Frieda.' Whatever name the child was generally known by was her proper designation in the information. Where a person upon whom a crime is committed is referred to by the name he or she is generally known by in the neighborhood where the crime is committed, the sue of such name in the information is proper, and there can be no fatal variance upon proof that the baptismal name or true name is otherwise. Such is the undoubted rule. State v. Seely, 30 Ark. 164; Jones v. State, 65 Ga. 147; Robinson v. Commonwealth, 88 Ky. 386, 11 S.W. 210; Commonwealth v. Trainor, 123 Mass. 414; People v. Leong Quong, 60 Cal. 107; Ruddick v. State, 25 Fla. 112, 5 So. 704; Vandemark v. People, 47 Ill. 122; Ehlert v. State, 93 Ind. 76; Bell v. State, 25 Tex. 574; State v. Johnson, 67 N.C. 55; McBeth v. State, 50 Miss. 81; State v. Bundy, 64 Me. 507; State v. Peterson, 70 Me. 216. Such is also the rule in England. Rex v. Norton, 1 Russ. & Ryan, 509.

Complaint is next made of instructions to the jury numbered 8 and 12. Instruction No. 8 was evidently taken by the court from State v. Harras, 25 Wash. 416, 65 P. 774, as it is a duplicate of instructions there held to correctly state the law. No other comment need be made. It was good law and applicable to the facts in the case. Its only fault was its length. It...