State v. Place

The opinion of the court was delivered by

Stiles, J.

The information against appellant stated facts sufficient to constitute an offense under Penal Code, § 22. It is true that the crime against nature punishable as a felony at common law (1 Bishop’s Crim. Law, § 503), is not so punishable in this state, because no penalty has been fixed by statute. But under Code of 1881, § 782, all common law crimes were indictable, and we think the change of the phraseology of the section made by the legislature of 1891 (CodeProc., § 1185), does not restrict the meaning of the section to the jurisdiction of the superior court only.

That the legislature has seen fit to allow the completed offense to escape with no punishment, and to inflict a severe penalty for an assault committed with intent to commit the substantive crime, is not ground for the court’s refusing to sustain a prosecution.

Counsel appeal to us to review the evidence, and say that it was insufficient to sustain a conviction; and, if we were to accede to the proposition that only what happened in Lewis county should be considered, it would be difficult to say that the case had been made out, because the facts in evidence would leave it doubtful what the appellant was trying to do when he made the second assault upon the complaining witness. But it was entirely legitimate for the court to allow the state to show what occurred while the train was yet in Oregon, for the purpose of assisting the jury to come to a conclusion as to what appellant’s real intention was in making the second assault; and from what had happened only an hour or two before we do not see how the jury could have well found otherwise than that the second assault was with the- same intent as the first one, where the intent was very clear.

But the case must be reversed for the error of the court in permitting the j ury to separate, without the consent of the appellant, during the progress of the trial. Code Proc., § 1311, is mandatory, and must be obeyed. Anderson v. State, 2 Wash. 183 (26 Pac. Rep. 267). It was especially impoi’tant in such a case as this, where a large number of spectators were attracted to the trial, and where the testimony given could not help producing disgust and indignation. To let a jury, under such circumstances, scatter among the crowd, was to subject them to chances of outside influence which they could not avoid, and which the accused had a right to have them kept free from.

Judgment reversed, and cause remanded.

Dunbar, C. J., and Bcott and Anders, JJ., concur.