120 Wash. 559 | Wash. | 1922
— An information was filed in the superior court charging O. S. Larson substantially as follows: That on or about January 15, 1921, he was president and one of the directors of the Scandinavian American Bank of Tacoma, a corporation engaged in a general banking business, and as such president he personally conducted the general management of the bank, and did then and there, as such president, accept, receive, consent to and connive at the reception of a certain deposit of $1,409 from George Chapman, by his agent W. H. Reed; that the money so deposited was lawful money of the United States, and that the defendant then and there knew, and had good reason to believe, that the bank was at that time unsafe and insolvent.
Upon arraignment, the defendant demurred to the information on the grounds (1) that it did not substantially conform to the requirement- of § 2059, Rem. Compiled Statutes which provides"that “The----information must charge but one crime, and in one form only,” (2) that more than one crime is charged, and (3) that the facts set forth in the information do not constitute a crime. The demurrer was sustained. The state, electing to stand upon the information as drawn, has appealed from the judgment dismissing the action.
It appears that the information is founded on § 388, p. 1010, ch. 249, Laws of 1909, commonly known as the criminal code, § 2640, Rem. Compiled Statutes. The section provides against one “who shall accept or receive, . . . any deposit, or who shall consent thereto or connive thereat, ’ ’ and because § 81, p. 307, ch. 80, Laws of 1917 (Rem. Comp. Stat., § 3288) in dealing with the
However, it is contended by the respondent that, if it be assumed § 2640, Eem. Compiled Statutes, has not been repealed, the information is bad for duplicity. That is, because it is charged that the respondent, as president of the bank, did accept, receive, consent to and connive at the receipt of the deposit, that he is thereby accused of more than one crime. Attention is called by the respondent to the cases of State v. Dodd, 84 Wash. 436, 147 Pac. 9, and Todd v. State, 89 Tex. Cr. 99, 229 S. W. 515, in support of that contention. An examination of those cases shows that in each the defendant was accused of two or more transactions each of which constituted a completed crime, and each of which had no readily perceived connection with the other transaction or transactions with which the defendant was charged. If the statute on which this case rests provided that one should not accept or receive a deposit, and further provided that one should not solicit a deposit, whether it was received by the bank or not, an information charging all of such things would be vulnerable to the claim of duplicity. It would charge more than one crime, each of which
In the case of State v. Holedger, 15 Wash. 443, 46 Pac. 652, the rule given in 1 Bishop’s Criminal Procedure (3d ed.), §586, was approved. That rule is as follows:
“If a statute makes it a crime to do this, or that, or that, mentioning several things disjunctively, all may indeed, in general, be charged in a single count ; but it must use the conjunctive ‘and’ where ‘or’ occurs in the statute, else it will be defective as being uncertain. All are but one offense, laid as committed in different ways. And proof of it in any one of the ways will sustain the allegation. On the other hand, the indictment may equally well charge what comes within a single clause of the statute, and still it embraces the complete proportions of an offence.”
The rule is adhered to and announced in the later cases of State v. Newton, 29 Wash. 373, 70 Pac. 31, and State v. Pettit, 74 Wash. 510, 133 Pac. 1014. To the same effect see: 29 Cyc. 379-380; Wharton’s Criminal Pleading and Practice (9th ed.), § 251.
The crime charged against the respondent is of statutory origin, and in the charging part of the information the words of the statute have been pursued,
Reversed, and remanded with instructions to overrule the demurrer.
Parker, C. J., Fullerton, Tolman, and Bridges, JJ., concur.