State v. Wynn

• Decision Date: 02 July 1923
• Docket Number: 17957.
• Citation: 216 P. 872,125 Wash. 398
• Parties: STATE. v. WYNN.
• Court: Washington Supreme Court

216 P. 872

125 Wash. 398

STATE. v. WYNN.

No. 17957.

Supreme Court of Washington

July 2, 1923

Department 1.

Appeal from Superior Court, Thurston County; John M. Wilson, Judge.

J. B Wynn was convicted of bootlegging, and appeals. Affirmed.

Ben S. Sawyer and Harry L. Parr, both of Olympia for appellant.

Roscoe R. Fullerton and Nat U. Brown, both of Olympia, for the State.

HOLCOMB J.

Appellant was prosecuted, tried, and convicted, in the superior court for Thurston county, of the crime of bootlegging, and judgment was thereupon pronounced, from which he appeals.

At the beginning of the trial appellant orally demurred to the information on the ground that it stated no crime known to the Code of the state of Washington; that it constitutes a statement of facts which, it proven, would be a bar to the action. On appeal appellant urges that the information states no venue, and that therefore appellant was not legally convicted in the superior court for Thurston county, and that he should therefore be discharged.

It is true the information omits to allege that the offense was committed in Thurston county. The evidence, however, which was introduced without objection on the part of appellant was that the offense was committed in the Caledonia Hotel, at 118 East Fifth street, in the city of Olympia, state of Washington. The venue in Thurston county was therefor proven by the state without objection on the part of appellant.

The matter of the omission of the venue in the information apparently escaped the attention of the prosecutor, court, and counsel for appellant. It was never called to the attention of the court below, and the demurrer did not reach it. An offense was charged against appellant in the information, to wit, the offense of bootlegging, by then and there, on the 9th day of September, 1921, willfully, unlawfully, and feloniously carrying about with him intoxicating liquor, to wit, moonshine whisky, for the purpose of sale, contrary to the form of the statute and against the peace and dignity of the state. An offense was charged, but it was not alleged where the offense was committed, except that it was in the state of Washington. The defect was not such a defect as could not be waived. Section 2066, Rem. Compiled Statutes, provides in part as follows:

'No indictment or information is insufficient, * * * by reason of any of the following matters, which were formerly deemed defects or imprefections:

'1. For want of an allegation of the time or place of any material fact, when the time and place have been once stated.'

That even a variance as to the venue of the offense is not fatal under our statute is manifested by section 2164, Rem. Compiled Statutes, which provides that, where a defendant is prosecuted in a county not having jurisdiction, upon the discovery of the proper county to have jurisdiction, the trial court of the county where the action is being prosecuted may order the venue of the indictment of information corrected, and direct all papers and proceedings to be certified to the trial court of the proper county, and recognize the defendants and witnesses to appear at such court, and this may be done at any time before verdict or judgment.

Section 2158, Rem. Compiled Statutes, provides that the trial of a criminal case shall be conducted in the same manner as in a civil action. Section 300, Rem. Compiled Statutes, provides as to civil actions that, when a variance appears which is not material, the court may direct the fact to be found according to the evidence, or may order an immediate amendment, without costs. Section 299, Rem. Compiled Statutes, as to civil actions, provides that no variance between the allegations in a pleading and the proof shall be deemed material, unless it shall have actually misled the adverse party to his prejudice in maintaining his action or defense upon the merits. There is no doubt, therefore, that, had the omission of the venue of the action been called to the attention of the prosecuting attorney and the trial court, the court could have properly ordered the amendment of the information to show the venue in Thurston county at any time before the case went to the jury. The defect was waived.

It is next urged that the court erred in permitting the introduction of a confession by the appellant without proof of the corpus delicti. It is argued that the crime charged here is bootlegging, and that proof of the unlawful poossession of intoxicating liquor was no more than proof of unlawful possession, that is, of a misdemeanor, and was not proof of the corpus delicti of the felony of bootlegging.

We cannot agree...