State v. Romans

• Decision Date: 22 June 1899
• Parties: STATE v. ROMANS.
• Court: Washington Supreme Court

57 P. 819

21 Wash. 284

STATE v. ROMANS.

Supreme Court of Washington

June 22, 1899

Appeal from superior court, Yakima county; John B. Davidson, Judge.

Frank Romans was convicted of attempting to commit the crime of sodomy, and appeals. Affrimed.

Fred Miller, for appellant.

ANDERS J.

The appellant was tried in the superior court of Yakima county upon an information filed by the prosecuting attorney, the charging part of which is as follows: 'He the said Frank Romans, on the 28th day of June, 1898, A. D in the county of Yakima, state of Washington, then and there being, did then and there in and upon one Harley Morgan, a male person then and there being, unlawfully and feloniously make an assault, and then and there feloniously and against the order of nature had a venereal affair with and carnally knew the said Harley Morgan, and then and there feloniously and against the order of nature with the said Harley Morgan did commit and perpetrate the infamous, detestable, and abominable crime against nature of buggery; contrary to the statute,' etc. The jury returned a verdict of 'guilty of the crime of attempting to commit the crime of sodomy.' A motion for a new trial was duly filed, and overruled by the court, and appellant thereafter moved in arrest of judgment on the ground that the information did not state facts sufficient to constitute a crime. This motion was likewise overruled, and exception taken, and appellant was sentenced to imprisonment in the state penitentiary for the term of five years.

The appellant contends that the court erred in directing the jury that they might return a verdict of guilty of attempting to commit the offense charged in the information, but we perceive no error in the ruling of the court in that regard. Under our statute a party charged with a consummated offense may be found guilty of an attempt to commit the offense (2 Hill's Code, § 1319; 2 Ballinger's Ann. Codes & St. § 6955); and it is held in some states that such a conviction is justified by the common law, in the absence of a statutory provision (Whart. Cr. Pl. [9th Ed.] § 261). Section 303 of Hill's Pen. Code (section 7437, Ballinger's Ann. Codes & St.) provides that 'every person who attempts to commit any crime, but fails, or is prevented or intercepted in the perpetration thereof, is punishable, when no provision is made by law for the punishment of such attempt, as follows,' etc. But it is argued...