State v. Warburton

• Decision Date: 16 July 1917
• Docket Number: 14051.
• Citation: 97 Wash. 242,166 P. 615
• Court: Washington Supreme Court
• Parties: STATE v. WARBURTON.

166 P. 615

97 Wash. 242

STATE v. WARBURTON.

No. 14051.

Supreme Court of Washington

July 16, 1917

Department 2. Appeal from Superior Court, Pierce County; Ernest M. Card Judge.

S Warburton was convicted of an offense, and he appeals. Affirmed.

S. Warburton and Boyle, Brockway & Boyle, all of Tacoma, for appellant.

Fred G Remann and Geo. M. Thompson, both of Tacoma, for the State.

FULLERTON J.

The appellant, while in the city of Chicago, Ill., on his way to Tacoma, Wash., purchased 19 gallons of whisky and placed the same in a trunk, which he checked with a railway company at Chicago for carriage to Tacoma as ordinary baggage. The trunk with its contents was carried by the railway company to Tacoma. The appellant on his arrival at Tacoma paid the excess baggage charges, and delivered the baggage check to a transfer company, with directions to procure the baggage and convey it to his place of residence in that city. The appellant had no permit to import liquors within or into the state, nor was any permit such as is provided by the statute known as 'Initiative Measure No 3' attached to the trunk containing the liquor. The appellant did not have or acquire personal possession of the liquor in the state of Washington. Prior to the time he delivered the baggage check to the transfer company it had been seized by the officers of the law under a search warrant, and has not since been delivered to him. Shortly after the seizure the appellant was arrested on a warrant from a justice's court of Pierce county issued on a complaint charging:

'That on the 14th day of June, 1916, at Tacoma, in Pierce county, state of Washington, John Doe, then and there being, did then and there unlawfully ship into the state of Washington intoxicating liquor without having attached to the parcel containing said liquor a permit as required by law, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the state of Washington.'

To the complaint the appellant entered a plea of not guilty, and was tried thereon, the trial resulting in a judgment of conviction. From the judgment the appellant prosecuted an appeal to the superior court, where he was again convicted and adjudged to pay a fine. From the last mentioned judgment the present appeal is prosecuted.

Noticing the assignments of error in the order in which they are presented by the appellant's learned counsel in their brief, the first is that there is a fatal variance between the charge and the proofs. Attention is called to the fact that the complaint lays the venue of the offense in the state of Washington, and it is argued that the appellant's connection with the shipment ceased in the state of Illinois when the appellant delivered the trunk containing the liquors to a common carrier in that state to be brought into the state of Washington as a part of his baggage, and in consequence there is no evidence to sustain the charge that the appellant shipped the liquor into the last-named state. Stated in another form, the contention is that the appellant is not liable to answer for the act of the common carrier, notwithstanding he was a party to the act and the instigator and cause of the act. But this is not the rule. In criminal law all participants, however so participating, are actors. One who procures the commission of an offense, or counsels, aids, or abets another in its commission, is a participant therein, and equally guilty with the actual perpetrator of the offense. On this principle a person is criminally answerable for the commission of an unlawful act which he causes to be done through the agency of another. So here, if it be in violation of the laws of the state of Washington to ship intoxicating liquor therein in the manner in which this liquor was shipped, the appellant is criminally liable therefor, if not as the actual perpetrator of the offense, then as the procuring cause of such offense and as an aider and abettor therein.

We think it plain, also, that the state of Washington had jurisdiction of the offense, and that the venue of the offense was properly laid in Pierce county. The act was essentially a continuing act whose performance was begun when the liquor was delivered to the carrier in the state of Illinois for shipment, and was completed when it was carried to its destination in the state of Washington. As a continuing act extending over different jurisdictions, it is cognizable as an offense in that jurisdiction whose laws are violated by the commission of the act.

These principles are so well understood as hardly to require authority for their support. At common law, in misdemeanors there are no accessories; all concerned are principals, whether instigators, perpetrators, or aiders and abettors of the criminal act (Wharton's Criminal Law [8th Ed.] § 261) and by statute in this state the principle is extended to felonies (Rem. Code, § 2260). The authorities are all to the effect that a principal who procures an unlawful act to be done through the instrumentality of an agent is as much liable as if he actually and personally participated therein (Wharton's Criminal Law [8th Ed.] § 266), and this though he may have procured the act to be done while out of the jurisdiction against which the offense is committed ( Id. § 288). It is uniformly held also that a common carrier may be made the agent in this sense. State v. Intox, Liquors, 98 Me. 464, 57 A. 798; State v. O'Neil, 58 Vt. 140, 2 A. 586, 56 Am. Rep. 557; Pilgreen v. State, 71 Ala. 368; United States v. Freeman, 239 U.S. 117, 36 S.Ct. 32, 60 L.Ed. 172.

The last-cited case is authority, moreover, for the proposition that the transportation of intoxicating liquors through the instrumentality of a common carrier from one jurisdiction to another is a continuing act, cognizable in the jurisdiction where the shipment terminated. That was an indictment under the federal Criminal Code making it a punishable offense to ship from one state into another any package containing intoxicating liquor unless the package be so labeled on its outside cover as to plainly show the name of the consignee the nature of its contents, and the quantity of...