State v. Blackley , 191 Wash. 23 ( 1937 )

STEINERT, C.J., MILLARD, and ROBINSON, JJ., dissent. By an information filed by the prosecuting attorney of Whatcom county, the defendants Blackley and Bicknell were charged with the crime of manslaughter. The charging part of the information reads as follows:

"On or about the 26th day of April, 1936, the said defendants, did unlawfully and feloniously by their acts and omissions kill a human being to-wit, one G.M. Caylor, by combined unlawful acts, in this, that while the said G.M. Caylor was riding in a Chevrolet coach automobile upon a public highway in said county and state, to-wit: the Pacific highway, near what is known as Giles Corner in said county, going in a southerly direction, said defendant Clarence B. Bicknell was driving an automobile stage on said highway, going in a northerly direction and said defendant Graydon Blackley was driving an automobile, to-wit: a Hudson coach automobile, on said highway in a northerly direction, to the rear of said stage; that as the automobile in which the said G.M. Caylor was riding, approached said stage, said defendant Clarence B. Bicknell unlawfully stopped said stage on said highway, without leaving a clear and unobstructed width of sixteen (16) feet upon the main travelled portion of said highway opposite said stage, and said defendant Graydon Blackley came up from behind, driving his automobile on said highway, while under the influence of intoxicating liquor, in a reckless and careless manner and as said stage stopped, the automobile driven by said defendant Graydon Blackley, struck the left rear end of said stage veered to the left and collided with the automobile in which said G.M. Caylor was riding, wrecking the same and killing the said G.M. Caylor."

The defendants interposed motions to quash the information. The motions were granted "on the ground that the two defendants, Clarence B. Bicknell and Graydon Blackley, are improperly joined as defendants," the court being "of the opinion that the two defendants should not be tried jointly." The state appeals.

[1] To sustain the ruling, respondents cite a number of authorities, from which they glean, as essentials to the joinder of defendants in an indictment or information, the following principles:

(1) That the offense must be joint; that is, it must be committed by the two defendants acting together, and not by the two defendants acting separately.

(2) That there must be a conspiracy, or at least concert of action, between the defendants.

(3) That defendants may not be joined in one information or indictment, if evidence against one is not admissible as against the other defendant. State v. Lehman, 182 Mo. 424,81 S.W. 1118, 103 Am. St. 670, 66 L.R.A. 490; Commonwealth v. Miller, 2 Pa. Eq. Cas. 480; State v. Winstandley, 151 Ind. 316,51 N.E. 92; Rex v. Philips, 2 Strange (Eng.) 921; Commonwealth v.Elwell, 2 Met. (43 Mass.) 190, 35 Am. Dec. 398; 14 R.C.L. 194.

We do not think, however, that the authorities cited are susceptible to the restrictive construction suggested by respondents. In any event, we are certain that a much broader view is taken by a great majority of the courts. The rule is that, where but one crime is charged in the indictment or information, all who participate in its consummation may be joined as defendants in the same information, even though their contributions to the result may be by different methods or acts.Elliott v. State, 26 Ala. 78; Fowler v. State, 50 Tenn. 154;Commonwealth v. Sloan, 4 Cush. (58 Mass.) 52; Commonwealth v.Tower, 8 Met. (49 Mass.) 527; State v. Forcier, 65 N.H. 42,17 A. 577; Volmer v. State, 34 Ark. 487; Ratliff v.Commonwealth, 182 Ky. 246, 206 S.W. 497; Fox v. Commonwealth,202 Ky. 41, 258 S.W. 950; State v. McAninch, 172 Iowa 96,154 N.W. 399, Ann. Cas. 1918A, 559; State v. Leeper, 199 Iowa 432,200 N.W. 732. In Elliott v. State, supra, the principle is stated:

"The general rule as to the joinder of defendants, as laid down in works of good authority, is, that where the same evidence, as to the act which constitutes the crime, applies to two or more, they may be jointly indicted. —Commonwealth v. Elwell, 2 Met. 190. If the offence arise out of the same act, though the parties stand in different relations, they may be joined. If several be engaged in the commission of the same offence, though each may act a different part in the commission of that offence, they may be joined. 1 Waterman's Archb. Cr. Pl. 96; Wharton's American Cr. Law 110."

The following of our own cases are in harmony with this statement of the rule: State v. Columbus, 74 Wash. 290,133 P. 455; State v. Meyers, 121 Wash. 579, 210 P. 4; State v.Andrich, 135 Wash. 609, 238 P. 638.

In the case at bar, there is but one crime charged — the killing of G.M. Caylor by the negligent acts of the defendants. Notwithstanding the defendants are not charged with the same acts of negligence, they are properly joined, since, under the facts alleged, the negligent acts of each contributed to the consummation of the crime.

[2] Whether they should be tried separately or together is a matter to be addressed to the discretion of the court, under Rem. Rev. Stat., § 2161 [P.C. § 9377]. The fact that the court may believe they should not be tried together would not militate against the propriety of charging them in the same information. Nor is the joinder objectionable because, if tried together, evidence introduced may be admissible against one and not the other. In such contingency, the applicability of the evidence is to be controlled by proper instructions. State v. Dilley,44 Wash. 207, 87 P. 133.

The order granting the motions to quash the information is reversed.

MAIN, HOLCOMB, BEALS, GERAGHTY, and TOLMAN, JJ., concur.