State v. Vanderveer

• Decision Date: 30 March 1921
• Docket Number: 16176.
• Court: Washington Supreme Court
• Parties: STATE v. VANDERVEER.

196 P. 650

115 Wash. 184

STATE v. VANDERVEER.

No. 16176.

Supreme Court of Washington

March 30, 1921

Department 2.

Appeal from Superior Court, Clarke County; R. H. Back, Judge.

George F. Vanderveer was convicted in the superior court after appealing from justice court of willfully and unlawfully having verbal communication with a prisoner, etc., in violation of Rem. Code 1915, § 2377, and he appeals. Reversed, with directions.

Geo. F Vanderveer and Ralph S. Pierce, both of Seattle, for appellant.

W. E Yates, of Vancouver, for the State.

MITCHELL J.

The defendant was prosecuted before a justice of the peace of Clarke county upon a criminal complaint which charged that----

'he not being authorized by law or by any officer authorized thereto, on or about the 26th day of October 1919, in the county of Clarke and state of Washington, then and there being, did then and there willfully and unlawfully have verbal communication with a prisoner or prisoners in the county jail of Clarke county, state of Washington, the exact identity of which said prisoner or prisoners is to affiant unknown.'

From an adverse judgment of the justice of the peace court the defendant appealed to the superior court, and from a conviction in that court he has taken his case to this court.

The case is presented upon two assignments of error, viz.: (1) In overruling the demurrer to the complaint; and (2) in denying an application for a change of the trial judge.

Section 2377, Rem. Code, upon which the complaint is based, provides:

'Every person who, not being authorized by law or by any officer authorized thereto, shall have any verbal communication with any prisoner in any jail, reformatory penitentiary, or other penal institution, or shall bring into or convey out of the same any writing, clothing, food, tobacco or any article whatsoever, shall be guilty of a misdemeanor.'

The appellant insists that the facts stated in the complaint are not sufficient to constitute a crime because:

'Two things must concur to constitute a crime: First, there must be an act done of a character to threaten the security of the state or its citizens; and, second, the act must have been done with some evil intent.' Surely an act violating a positive law manifestly designed to promote the discipline and safe-keeping of prisoners (consisting of convicts and others accused of crime) until the sheriff, who has charge of the jail is relieved of their custody by legal authority, of necessity is a threat and dangerous to the peace and security of the state and its citizens. That is the act with which the appellant is charged by the complaint. As to the element of evil intent, admit that it is essential in this statutory crime, it is to be observed that the complaint defines the act in the language of the statute and charges that it was done 'willfully and unlawfully.' An act done willfully is done intentionally and designedly. An act done unlawfully is done without legal justification. It follows, necessarily we think, that to charge one with conduct which is both intentional and contrary to law is to say the act was done with an evil purpose. The demurrer to the complaint was properly overruled.

Upon taking the appeal to the superior court the justice of the peace made and certified a copy of the conviction and other proceedings in the case and transmitted the same to the clerk of the superior court. Thereafter, and for some time, nothing was done in the case until with or immediately prior to the demurrer the appellant filed the statutory affidavit of prejudice against the trial judge, who upon having his attention called to it entered an order denying the application for another judge. Thereupon and on the same day the trial of the appellant was had in the superior court. No statement of facts or bill of exceptions has been furnished on the...