State v. Newton

• Decision Date: 08 August 1902
• Citation: 70 P. 31,29 Wash. 373
• Parties: STATE v. NEWTON.
• Court: Washington Supreme Court

70 P. 31

29 Wash. 373

STATE v. NEWTON.

Supreme Court of Washington

August 8, 1902

Appeal from superior court, Chehalis county; Mason Irwin, Judge.

J. F Newton was convicted of forgery, and he appeals. Affirmed.

W. H. Abel and A. M. Abel, for appellant.

J. A Hutcheson, for the State.

FULLERTON J.

The appellant was convicted in the superior court of Chehalis county of the crime of forgery, and from the judgment of conviction and the sentence pronounced thereon he appeals to this court.

He assigns that the court erred (1) in overruling his motion to quash the information; (2) in refusing to sustain his demurrer to the information; (3) in requiring him to go to trial in the absence of witnesses; (4) in the admission and exclusion of evidence; (5) in its instruction to the jury and (6) in rendering judgment upon the verdict.

1. The motion to quash was based upon the following facts: The appellant was taken into custody upon a warrant issued on a complaint made before a justice of the peace sitting as a magistrate, the charging part which was as follows: 'That on the 14th day of December, A. D. 1901, at Hoquiam, in Chehalis county, in the state of Washington, J. F. Newton did falsely and fraudulently forge a check by signing the name of B. S. Philbrick thereto without authority to do so.'

A hearing was had on the complaint, in which witnesses were examined touching the alleged offense, at the conclusion of which the magistrate found there was probable cause to believe that the appellant was guilty of the crime charged, and thereupon bound him over to appear before the superior court to answer to the charge, fixing his bail at $500. The appellant was in custody under this commitment at the time the information was filed against him. No warrant for the arrest of the appellant was directed to be issued by the court on the filing of the information, nor was one issued by the clerk on his own motion within 10 days thereafter, or at all. The appellant argues that the complaint before the magistrate did not state facts sufficient to constitute a crime, and hence all of the subsequent proceedings before that officer were void; that the appellant was illegally in custody; and that it was error for the court to require him to answer the information without first causing him to be arrested, and brought before the court upon lawful process.

It can be seriously questioned, we think, whether the question here sought to be raised can be raised upon a motion to quash the information, but waiving this, and assuming, without deciding, that one illegally in custody cannot lawfully be required to plead to an information, we find no merit in the contention. The statute does not prescribe any particular form of complaint to be filed before a magistrate as a prerequisite to his right to inquire into the commission of an alleged offense, and certainly it would be going too far to hold that such a complaint must state the facts constituting the offense intended to be charged with the same technical precision required in an indictment or information. The proceeding before the magistrate is in no sense a trial. Should the accused request it, he may be permitted to enter into a recognizance to appear before the superior court having jurisdiction of the offense without examination, and the magistrate may lawfully require the accused to answer before the superior court for any offense he finds there is probable cause to believe he has committed, whether it be the offense named in the complaint, or an entirely distinct offense; provided, of course, it be one within the jurisdiction of the superior court. From this it would seem that it is not from the complaint that the magistrate determines the character of the offense, or the question whether there is probable cause to believe that the accused is guilty of an offense, but determines these matters rather from the evidence adduced at the examination, or from the fact that examination is waived. The fact, therefore, that the complaint is informal cannot have the effect of rendering all the subsequent proceedings void, or the custody of the accused, committed after an examination, illegal.

2. The charging part of the information upon which the appellant was tried is as follows: 'The said J. F. Newton, within Chehalis county, in the state of Washington, on the 14th day of December, A. D. 1901, did then and there falsely fraudulently, unlawfully, and feloniously make, forge, and counterfeit a certain bank check, which check, so made, forged, and counterfeited, then and there purported to be and was an instrument in writing and order for money of the tenor following: 'Hoquiam, Wash., 12-14-1901. No. ___. First National Bank: Pay to J. F. Newton, or order, $15.00, fifteen dollars, _____ dollars. B. S. Philbrick.' And upon the back of which said bank check he, the said defendant, wrote and indorsed his name thus, 'J. F. Newton,' and did then and there unlawfully and feloniously, knowing the said bank check, so made, to be false, utter and publish as true the said instrument in writing and order for money, constituting a bank check, as aforesaid, with the premeditated purpose and intent of him, the said J. F. Newton, to defraud Charles Dolstrom, B. S. Philbrick, the First National Bank of Hoquiam, Washington, and other persons whose names are to this informant unknown.' The objection to this information is that it charges more than one crime. The statute, it is true, makes it an offense either to falsely make, assist to make, or cause to be made, etc., or to utter and publish as true, knowing the same to be false, certain named instruments, but where a person is guilty of one or more of these acts with reference to the same instrument, it is generally held to constitute but a single offense; hence an indictment or information which charges more than one of the enumerated acts with reference to the same instrument is not void for duplicity, or because it charges more than one crime. As was said in People v. Frank, 28 Cal. 507: 'Where, in defining an offense, a statute enumerates a series of acts, either of which separately, or all together, may constitute the offense, all such acts may be charged in a single count, for the reason that notwithstanding each act may be itself constitute the offense, all of them together do no more, and likewise constitute but one and the same offense. To illustrate our meaning: Take...