State v. Harkness , 196 Wash. 234 ( 1938 )

The foregoing opinion correctly decides that the first twelve counts of the information, that is to say the three counts against each of respondents Harkness and the six counts against respondent Sanders, are substantially in the language of the statute and sufficiently charge respondents severally with its violation.

The crimes were purely statutory offenses, and it seems to me there could be no other determination upon those counts under our statute as to joinder of counts and our decisions in State v.Brunn, 145 Wash. 435, 260 P. 990, and many subsequent cases.

I shall not dispute the decision that count thirteen, a conspiracy charge, is not sufficient in form to charge such crime under the decisions cited in the opinion.

All that respondents urged below and contend on appeal is that all those counts were insufficient to charge offenses upon the ground that there is a distinction between prescriptions which were falsely made and prescriptions which are forged and altered. The majority in this case decides that those counts charged crimes under the statutes set out, with which I heartily agree.

It is the general rule in criminal prosecutions that any count in an indictment or information may stand or fall alone, and the failure of one count to allege a crime sufficiently does not mean that all other counts which may be joined therewith must also fail.

This decision is contrary to that in State v. Blackley,191 Wash. 23, 70 P.2d 799, a prosecution for manslaughter, a very serious felony, which is our very latest case on such questions, without discussion.

In that case it was contended:

"(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."

We overruled those contentions and, among other things, said:

"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. [Citing cases.]"

We there approved Elliott v. State, 26 Ala. 78, saying:

"``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.'"

It being determined that twelve counts of the information alleged sufficient facts under our statute to constitute crimes, it is unimportant that the thirteenth did not.

I am willing to concede that the thirteenth count was bad, but the other twelve are good as decided by the majority, and the accused should be placed upon trial as to those offenses.

For these reasons, I dissent.