I concur in the decision by the majority as to the manner of impaneling the grand jury and the employment by the court of a special prosecutor to attend the sessions of the grand jury. I concurred in the decision of the case of State v. Guthrie, ante p. 464, 56 P.2d 160, thinking that decision correct in law and members of this court should not be hasty to waver too easily in important public matters.
The decision of the majority, however, is such a manifest miscarriage of justice to the tax paying public of Pierce county and the state that I am compelled to vigorously dissent therefrom.
I wish to add to what was said in the Guthrie case, supra, as to the matter of impaneling the grand jury, that there is no constitutional right in this state, as in many states, to be prosecuted by a grand jury.
Under Art. I, § 25, Washington constitution, offenses theretofore required to be prosecuted by indictment may be prosecuted by information or indictment as prescribed by law. *Page 568
Art. I, § 26, supra, prescribes:
"No grand jury shall be drawn or summoned in any county, except the superior judge thereof shall so order."
From In re Rafferty, 1 Wash. 382, 25 P. 465, down to date, it has been the practice to prosecute chiefly by information rather than by indictment. There is no more potency in an indictment than in an information. Even were this court to hold that the grand jury was illegally impaneled after a verdict and judgment in the case, it would be our duty to order a sufficient information or indictment to be drawn, at the option of the prosecuting officers, and a retrial upon a sufficient charge.State v. Burns, 54 Wash. 113, 102 P. 886.
I also agree with the majority that the motion for a change of venue from Pierce county was correctly decided as not an abuse of discretion. See, also, State v. Lindberg, 125 Wash. 51,215 P. 41, and State v. Schafer, 156 Wash. 240, 286 P. 833.
There was no erroneous instruction given in this case prejudicial to appellants, as was the case in State v. Guthrie,supra. In fact, there were no flagrant errors prejudicial to the rights of appellants justifying a reversal. All of the errors complained of involved matters of discretion for the trial court to decide.
The prevailing opinion is contrary to the principles announced in State v. Krug, 12 Wash. 288, 41 P. 126, State v. Green,158 Wash. 574, 291 P. 728, and cases there cited, and to our own definitive statement of the law by Tolman, J., in the recent case of Casco Co. v. Thurston County, 163 Wash. 666,2 P.2d 677, 77 A.L.R. 622. Some of the members who have signed the prevailing opinion thought it good law where we said: *Page 569
"All governments pay in warrants; and the mere fact that a warrant, because of the depletion of the fund upon which it is drawn, is not at once reducible to money, makes it none the less the only means of paying public officers, employees and those who supply the daily needs of the state and its local subdivisions. Such a warrant is negotiable, in the commercial sense, at least, and those who must can usually obtain its present value in cash, or, if they think proper to hold it, receive interest upon it until it is redeemed."
Warrants are but symbols representing money the same as checks.
In this case the act of defrauding the county of its money consisted of several steps: (1) The delivery of the wood; (2) the filing of claims for more wood than delivered; (3) the issuance of warrants to the Pacific Fuel Company; (4) payment of the warrants. The jury was warranted in finding that by these means appellants had obtained from the county by false pretenses "lawful money of the United States." In the final analysis, that is what the Pacific Fuel Company got and what the county lost.
It is immaterial that some of the warrants were not paid during the period charged in the indictment, namely, between October 16, 1933, and October 1, 1934. But, conceding that it is material, there is still ample evidence to sustain the verdict. It will be noted that five warrants were paid September 13, 1934. It must be remembered that there was evidence to the effect that the delivery of "short loads" was a matter of daily occurrence. In fact, the jury were justified in believing that practically all loads were fifteen to thirty per cent "short." This being so (figuring fifteen per cent off on the wood for which the county was billed), the county paid in money $1,816.50 for 516 cords of wood, on the false representation that 607 cords had been delivered. In other words, the county was defrauded *Page 570 of much more than the minimum sum of twenty-five dollars in lawful money of the United States, constituting grand larceny, during the period defined in the indictment. This proof was sufficient to sustain the charge of grand larceny, as alleged.State v. Liliopoulos, 167 Wash. 686, 10 P.2d 564.
After an examination of all of the errors assigned by appellants, none of them are sufficient to justify reversal of the verdict and judgment, which should be affirmed.
MAIN, BLAKE, and BEALS, JJ., concur with HOLCOMB, J.