State v. Yelle

• Decision Date: 13 June 1940
• Docket Number: 27802.
• Citation: 103 P.2d 372,4 Wn.2d 327
• Parties: STATE v. YELLE.
• Court: Washington Supreme Court

103 P.2d 372

4 Wn.2d 327

STATE v. YELLE.

No. 27802.

Supreme Court of Washington

June 13, 1940

Department 2.

Cliff Yelle was, by an information, charged with the crime of nonfeasance in office. From a judgment dismissing the proceeding, after a demurrer to the information had been sustained, the State of Washington appeals.

Affirmed.

Appeal from Superior Court, Clallam County; H. G. Sutton, judge.

Ralph Smythe and Max Church, both of Port Angeles, for appellant.

Thos L. O'Leary, of Olympia, for respondent.

JEFFERS, Justice.

The defendant, Cliff Yelle, was, by an information filed by the prosecuting attorney of Clallam county, June 5, 1939, charged with the crime of nonfeasance in office, in that defendant being the duly elected, qualified and acting state auditor of the state of Washington, willfully failed and neglected to examine any or all of the financial affairs of the several public offices and officers of Clallam county during the fiscal year beginning January 1, 1937, and ending December 31, 1937, and particularly failed and neglected to examine into the financial affairs of the county treasurer and county auditor, and further willfully failed and neglected to file a report showing an examination of the county of Clallam either in the office of the state auditor and attorney general of the state of Washington, or the office of the auditing department of Clallam county, or any of them.

To this information the defendant interposed a motion to set aside the information, and a demurrer thereto, subsequently filing an amended demurrer, which latter demurrer sets forth five grounds, as follows: (1) That the information does not substantially conform to the requirements of the statutes of the state of Washington; (2) that more than one crime is charged therein; (3) that the facts charged do not constitute a crime; (4) that from the information it appears that the superior court for Clallam county has no jurisdiction of the offense attempted to be charged therein, and that it likewise appears from the information that the above named court has no jurisdiction of the defendant; (5) that the information contains matter which constitutes a defense as well as a legal bar to the action.

After written briefs had been submitted and considered by the trial court, together with the oral arguments, the court, on September 15, 1939, entered an order sustaining the demurrer. The order does not state the specific ground upon which the demurrer was sustained. On the day last above mentioned, the parties appearing in court, and the prosecuting attorney in open court having stated that he did not desire to plead further, a judgment was entered dismissing the action, and this appeal by the state followed.

Error is assigned upon the sustaining of respondent's demurrer and the dismissal of the action.

While, as we have stated, the order sustaining the demurrer did not set out the grounds for the court's action, however, as shown by the memorandum opinion of the trial court, and as admitted by counsel, the demurrer was sustained for the reason and upon the ground that, under the information, Clallam county had no jurisdiction over respondent, Cliff Yelle, as auditor of the state of Washington, but that such a charge must be brought in Thurston county, where the officer is, under the law, compelled to maintain his office.

The sole question presented here is whether or not the venue was properly laid in Clallam county, which, of course, raises the question of where the crime was committed, if one was committed.

It is the contention of appellant that the respondent was required to make the audit in Clallam county, and that, as the duty to act was in Clallam county, the venue of this action, which is based on his willful failure to act, was properly laid in Clallam county.

On the other hand, respondent contends that if any crime was committed, it was committed in Thurston county, where respondent is required to maintain his office.

Rem.Rev.Stat. § 9958, in so far as applicable, provides: 'The state auditor, a deputy state inspector and supervisor, and every state examiner shall have power by himself or by any person legally appointed to perform the service, to examine into all financial affairs of every public office and officer; such examination of the financial affairs of townships, incorporated cities and towns and school districts shall be made at least once in every two years; all other examinations shall be made at least once a year. * * * A report of such examination shall be made in triplicate, one copy to be filed in the office of the state auditor, one in the auditing department of the taxing district reported upon, and one in the office of the attorney general.'

Rem.Rev.Stat. § 2268, provides: 'Whenever any duty is enjoined by law upon any public officer or other person holding any public trust or employment, their willful neglect to perform such duty, except where otherwise specially provided for, shall be a misdemeanor.'

It is because of the claimed violation of the duty imposed upon the state auditor by § 9958, supra, and under the authority of § 2268, supra, that this action is brought.

Article I, § 22, of the state constitution provides in part that in a criminal prosecution, the accused shall have the right to a speedy public trial by an impartial jury of the county in which the offense is alleged to have been committed.

Rem.Rev.Stat. § 2012, provides: 'Except as otherwise specially provided by statute, all criminal actions shall be commenced and tried in the county where the offense was committed.'

We think it extremely doubtful if the information does in fact allege that the respondent, being physically present in Clallam county, failed to audit, etc. However, the trial court in its memorandum opinion states: 'But it is conceded by everybody that the auditor actually never was in Clallam county in connection with the facts of this case.' While the appellant in its brief does not make that concession, it does state: 'It may be assumed for the purpose of this inquiry that the defendant was not during the time charged in the information, ever personally and actually within the territorial limits of this county.'

Without deciding whether or not the venue would have been properly laid in Clallam county had respondent been physically present in that county, and therein refused to make the audit, we proceed upon the theory that respondent was not physically present in Clallam county at any time charged in the information in connection with the matters therein referred to.

While appellant contends that the superior court of Clallam county, and Clallam county alone, has jurisdiction herein, our attention is called to Rem.Rev.Stat. § 2013, which deals with offenses committed partly in one county and partly in another, and a number of cases are cited in connection therewith. We do not believe the section referred to or the authorities cited are pertinent, as in our opinion the crime charged, if a crime is charged, was committed wholly in either Clallam or Thurston county.

Appellant, in its opening and reply briefs, cites many authorities from other jurisdictions, which it is contended support its contention that this action was properly brought in Clallam county. Many of the authorities deal with prosecutions against husbands and fathers for failure to support their wives and children. As typical of this class of cases, we mention the cases of State v. Borum, 188 La. 846, 178 So. 371, and State v. Dvoracek, 140 Iowa 266, 118 N.W. 399.

In the Borum case, the defendant was prosecuted in Monroe, Louisiana, for the willful nonsupport of his minor children, who at the time of the prosecution were residing at the home of the wife's father at Natchez, Mississippi. The opinion states the defendant was residing in Monroe at the time he was charged with neglecting his children and at the time of his prosecution for such neglect. The opinion further states [188 La. 846, 178 So. 373]:

'Willful nonsupport of minor children by their father is a continuing offense. State v. Morel, 146 La. 6, 83 So. 318. * * * The offense is committed at the place where the father may be found within the state, and not at the place of residence of the children. State v. Blache, 175 La. 718, 144 So. 430. * * *

'Defendant's duty to support his minor children accompanied him wherever he went. * * *

'The offense of nonsupport of children is not dependent upon the commission of any affirmative act, but on the omission of the plainest natural duty. Necessarily, then, the venue of the offense depends on wherever the omission to perform the duty occurs, which in defendant's case was in Monroe, La., during the period elapsing between September 1, 1934, and April 15, 1935. Defendant owed no such duty elsewhere.'

Appellant quotes from State v. Dvoracek, supra [140 Iowa 266, 118 N.W. 401], as follows: 'The statute under consideration, save the portion in relation to abandonment, is essentially negative. The penalty is denounced, not on the commission of any affirmative act, but on the omission of the plainest duty. Necessarily, then, the venue depends on where the omission to perform the duty occurred.'

After the quoted portion, we find the following statement as to the facts: 'The accused had settled with his family in Story county. Neither he nor they had done anything to change that residence. This being so, it was his duty as husband and father to provide for them and furnish them with food, clothing, and shelter at their place of residence in Story county.'

There is a conflict of authority in the decisions on the question of venue in proceedings to enforce support of a wife and minor children. In Poindexter v....