State v. Thomas, 39582
| Decision Date | 02 May 1968 |
| Docket Number | No. 39582,39582 |
| Parties | The STATE of Washington, Respondent, v. Jerry THOMAS, Jr., Appellant. |
| Court | Washington Supreme Court |
Donald L. Burcham, Oakesdale, John A. Schultheis, Spokane, for appellant.
Philip Faris, Prosecuting Atty., Colfax, for respondent.
An information was filed October 20, 1966, charging the appellant with second-degree assault, committed with the intent thereby to enable and assist himself to commit a felony. He was arraigned thereon on January 11, 1967, and pleaded not guilty. 1
A demurrer to the information was filed February 27, 1967, the day on which the case was called for trial. The appellant's counsel moved the court for permission to postpone argument on this demurrer until after the selection of the jury. After the selection of the jury, he argued the demurrer, contending that the information, which was couched in the language of RCW 9.11.020(6), was defective in that it did not name the felony which the appellant allegedly intended to enable and assist himself to commit. The trial court allowed the state to amend the information to specify that the assault was committed with the intent to enable the appellant to commit the crime of rape.
The trial court refused to grant more than a day's continuance, and the matter proceeded to trial. The jury returned a verdict of guilty.
Error is assigned to the court's refusal to dismiss and to its refusal to grant a continuance. A number of other errors are assigned, all based on the appellant's contention that the failure to specify the felony which he allegedly intended to enable and assist himself to commit rendered the information fatally defective.
The rule is that if the statute defines the crime with certainty, an information charging the crime in the language of the statute is sufficient. However, if the statute does not define the crime with sufficient certainty to apprise the defendant of the nature of the accusation against him, to the end that he may prepare his defense and plead the judgment as a bar to any subsequent prosecution for the same offense, it is not sufficient to charge in the language of the statute. State v. Royse, 66 Wash.2d 552, 403 P.2d 838 (1965).
A criminal complaint may state a crime, but still be so vague as to be subject to a motion for a bill of particulars. State v. Bates,52 Wash.2d 207, 324 P.2d 810 (1958). By definition, a complaint, stated in the language of a statute defining a crime, states a crime (assuming the statute is constitutional, and the constitutionality of RCW 9.11.020(6) is not challenged), therefore, it may be so vague that it is subject to a motion to make more definite and certain or a motion for a bill of particulars, but it is not subject to a motion to dismiss, unless the state refuses to amend.
The information, therefore, was, at the most, not sufficiently definite to apprise the appellant of the precise nature of the accusation and enable him to prepare his defense. As such, it was subject to a motion to make more definite and certain, and the court properly treated the appellant's demurrer as such a motion and required the amendment. It was not incumbent upon it to dismiss the action, however.
In the case of State v. Royse, supra, this court held that it was prejudicial error to deny the defendant's motion to make more definite and certain, where the information charged that the defendant had committed the crime of assault in the second degree, but did not allege what felony or felonies the defendant had intended to commit. We granted the defendant a new trial.
That case differs from this in an important respect. There, the defendant made his motion long prior to trial. It was not a motion to dismiss but rather was a motion to make more definite and certain. He successfully contended in this court that, in denying the motion, the trial court had deprived him of the opportunity to prepare his defense and to conduct an effective voir dire.
Here, the motion of the appellant was not made until the day of trial, and the appellant's counsel volunteered to postpone the argument on it until after the voir dire. The trial court offered a continuance if counsel could say he was surprised by the state's election to charge that the assault was committed with the intent to enable the appellant to commit rape, but he did not make such a claim.
Under the holding in State v. Royse, supra, the appellant was entitled to an order requiring the prosecutor to make its information more definite and certain, had he made a motion for such an order prior to the trial. That case does not stand for the proposition that, if the information is too indefinite, the charge must be dismissed.
Even though the appellant did not present his motion until the trial date, we might be inclined to hold that he was entitled to a continuance if he had claimed...
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State v. Kjorsvik
...--- U.S. ----, 111 S.Ct. 110, 112 L.Ed.2d 80 (1990). See also State v. Royse, 66 Wash.2d 552, 403 P.2d 838 (1965); State v. Thomas, 73 Wash.2d 729, 730, 440 P.2d 488 (1968).5 See, e.g., State v. Johnson, 59 Wash.App. 867, 872, 802 P.2d 137 (1990); State v. Sims, 59 Wash.App. 127, 132-33, 79......
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