State v. Wilson

• Decision Date: 21 June 1894
• Citation: 9 Wash. 218,37 P. 424
• Court: Washington Supreme Court
• Parties: STATE v. WILSON.

37 P. 424

9 Wash. 218

STATE v. WILSON.

Supreme Court of Washington

June 21, 1894

Appeal from superior court, King county; T. J. Humes, Judge.

Frank Wilson was convicted of burglary, and appeals. Affirmed.

G. D Farwell, for appellant.

John F Miller, Pros. Atty., and A. G. McBride, for the State.

DUNBAR C.J.

The prosecution in this action was commenced by information. Upon the trial of the case, the appellant was found guilty, and sentenced to eight years' imprisonment in the state penitentiary. The sufficiency of the information was objected to by motion to quash, by demurrer, and by motion in arrest of judgment. The charging part of the information is as follows: "He, the said Frank Wilson in the county of King, state of Washington, on the 7th day of December, 1892, in the nighttime of the said day, the dwelling house of one Christian Everson, in said county situate, unlawfully, willfully, feloniously, and burglariously did enter, with intent then and there to commit a felony therein." The sufficiency of this information was directly passed upon by this court in Linbeck v State, 1 Wash. St. 336, 25 P. 452. After reciting the law describing burglary, the court said: "And, by virtue of its provisions, the prosecution is no longer compelled to prove with what intent the defendant enters, but, on the contrary, the unlawful entering having been proved, the intent to commit a crime or misdemeanor is presumed; and, this being so, we are unable to see how the accuracy required before such section was enacted can now aid the defendant. The burden of showing the intent with which he entered is by said section cast upon him, and he can show such an intent to have been an innocent one, as well without the details as to his specific intent as with it. Aided by the section above quoted, the information was sufficient." In view of this decision, direct and positive as it was, it would seem that this court should not be again called upon to pass upon the sufficiency of the indictment in this particular. Any argument as to the propriety of the law should be addressed to the legislative department of the government, and not to this court; and the constitutionality of this same statute was as directly passed upon by this court in State v. Anderson, 5 Wash. 350, 31 P. 969, where the court said: "We see no reason, however, for holding that the legislature exceeded its power in providing that the presumption of criminal intent should follow the proof of unlawful entry, as provided in said section. The presumption provided for is not a conclusive one, and, even without the aid of such legislation, the jury would be justified in finding a criminal intent from the fact of the unlawful entry, if, under all the circumstances surrounding the case, such a presumption would be a reasonable one. It is the constitutional right of defendant to demand proof of his guilt before he shall be convicted of a crime, but it does not follow from such fact that it is beyond the power of the legislature to provide that a certain presumption may follow from the establishment of a fact, from which such presumption may follow as a reasonable conclusion."

But it is also urged by the appellant in this case that section 828 of the Code, which casts the burden of proving the innocence of the entry upon the defendant, has been repealed by the amendment of section 827, Laws Wash. 1887-88. The argument is that section 828 of the Code is but a proviso of section 827 and that, by the amendment of section 827 by the legislature in 1888, ^[1] the proviso was repealed with the original section so amended. But an inspection of the respective sections 827 and 828 of the Code shows that 828 is in no sense a proviso to 827. A proviso, as we understand it, is either a limitation or an addition to the provisions of a section; and here section 827 defines the crime of burglary, and section 828 simply provides a rule of evidence, by stating that, where a person shall have unlawfully entered as described in the...