The defendant was charged by an information containing five counts. Count 1 charges possession and sale of intoxicating liquor to one A on a certain date; count 2 charges possession and sale of intoxicating liquor to A on a different date, some six or seven weeks later; count 3 charges possession and sale of intoxicating liquor to *Page 475 B on still another date; count 4 charges possession and sale of intoxicating liquor to C on still another date; and count 5 of the information charges the defendant with opening up and maintaining a joint at a certain designated place.
By appropriate proceedings in the lower court, the defendant objected to the information on a number of grounds and particularly questioned the right of the state to include felonies and misdemeanors in the same charge, where there is nothing to indicate that they arose out of the same transaction, and nothing to indicate that the acts or transactions were in any way connected together. Our statute governing the question is as follows:
"Section 1. That Section 2059 of Remington's Compiled Statutes be amended to read as follows:
"Section 2059. Where there are several charges against any person, or persons, for the same act or transaction, or for two or more acts or transactions connected together, or for two or more acts or transactions of the same class of crimes or offenses, which may be properly joined, instead of having several indictments or informations the whole may be joined in one indictment, or information in separate counts; and, if two or more indictments are found, or two or more informations filed, in such cases, the court may order such indictments or informations to be consolidated." Laws of 1925, Ex. Ses., p. 168; Rem. 1927 Sup., § 2059.
In State v. Brunn, 145 Wash. 435, 260 P. 990, this court carefully considered the above statute and resolved all the questions, excepting the one which we have above indicated against appellant. It will be noticed that the statute above quoted provides for one indictment with separate counts, first, where the several charges arise out of the same act or transaction; second, where there are two or more acts or transactions connected together; or third, where there are *Page 476 two or more acts or transactions of the same class of crimes or offenses. There is nothing in this information indicating that the several charges arose out of the same act or transaction, or that the acts or transactions were in any way connected, rather the contrary affirmatively appears, so that it becomes necessary to inquire as to what is meant by the language "two or more acts or transactions of the same class of crimes or offenses."
The act, being taken in its entirety from the Federal statute, we have indicated in State v. Brunn, supra, that the interpretation placed thereon by the Federal courts will be followed generally by this court. The only Federal case which we have been able to find touching on the question presented by the third subdivision of this statute is United States v. Mullen,7 F.2d 244, a decision by a United States district court, where an indictment under the Federal prohibition act, which charged in one count a felony and in a second count a misdemeanor, was upheld. But this is not altogether in point, because there is a special provision in the Federal prohibition act which reads as follows:
"In any affidavit, information, or indictment for the violation of this chapter, separate offenses may be united in separate counts and the defendant may be tried on all at one trial and the penalty for all offenses may be imposed." U.S. Code (1926) Title 27, § 49.
It is true that there is language in the opinion which indicates that the joinder might be had under the general statute. But in view of the special provisions in the prohibition act which we have above quoted, it was not necessary to the opinion.
Crimes at common law are classified as treason, felonies and misdemeanors. In many of the states this classification is not followed, but both Mr. Bishop and *Page 477 Mr. Wharton make this classification, and the same classification is made by Corpus Juris.
Turning to our own Session Laws, we find Laws of 1909, p. 890 [Rem. Comp. Stat., § 2253], the same being our criminal code, providing:
"Section 1. CLASSIFICATION OF CRIMES.
"A crime is an act or omission forbidden by law and punishable upon conviction by death, imprisonment, fine or other penal discipline. Every crime which may be punished by death or by imprisonment in the state penitentiary is a felony. Every crime punishable by a fine of not more than two hundred and fifty dollars, or by imprisonment in a county jail for not more than ninety days, is a misdemeanor. All other crime is a gross misdemeanor."
It seems to me that this classification of crimes having been made by our own legislature, must be deemed to be the classification intended when the words were used "or for two or more acts or transactions of the same class of crimes or offenses."
In State v. Brunn, supra, we said:
"In this case, the twenty-six counts cover offenses of the same class, closely connected in point of time and apparently to a considerable extent proof tending to support one charge would be admissible in support of the others. We have no disposition to enlarge the Federal rule, but this case falls well within it."
It seems to me that under our statutory classification of crimes, felonies, misdemeanors and gross misdemeanors can only be joined together in one indictment or information, when the facts therein stated show that they arise out of the same act or transaction, or the acts or transactions are in some way connected together. In this case, it affirmatively appears that the acts charged are in no way connected together, bear no relationship to one another, are separate and independent, and proof of one does not in any way tend *Page 478 to prove the other. The view expressed in the majority opinion requires the trial court, in every case where there are several counts in an information covering felonies and misdemeanors not arising out of the same transaction or not connected, to judicially determine the meaning of the words "the same class of crimes or offenses", and this judicial determination must be made in the face of the legislative declaration of the meaning of the words. I think it was the plainly expressed intention of the legislature to grant to prosecuting attorneys the widest latitude in the joining, by separate counts, in one information, all felony charges, all gross misdemeanor charges and all misdemeanor charges, referring to the court the question of separate trials on the various counts, if it appear that the defendant might be prejudiced by the joinder.
I think the holding in the majority opinion tends to make uncertain the terms of a statute which appears to be plain and unambiguous. I therefore dissent.
MITCHELL, J., concurs with FRENCH, J. *Page 479