I concur in that part of the majority opinion which affirms the conviction on count No. 1, and dissent from that part thereof which reverses the conviction of manslaughter on count No. 2.
The real difference of opinion between the majority and myself hinges upon the meaning to be given the italicized words in count No. 2 of the information:
"Count (2) . . . further do accuse JAMES M. UNOSAWA of the crime of MANSLAUGHTER, committed as follows:
"He, the said JAMES M. UNOSAWA, as a part of the transactionalleged in Count I and connected therewith, in the County of King, State of Washington, on or about the 1st day of December 1945, wilfully, unlawfully and feloniously killed an unborn quick child, of which one Beulah LeClair was then and there pregnant, by injuring the said mother of said child by use of certain instruments and other means which at this time are not known to the Prosecuting Attorney." (Italics mine.)
The majority holds that these words serve no purpose except to establish the right of joinder under Rem. Rev. Stat., § 2059, while I am of the opinion that they constitute appropriate words of reference to make the allegations of count No. 1 a part of count No. 2. The majority takes several pages to explain its holding, and I freely concede that there is authority to support its position; however, I feel justified, because of the importance of the question involved, in taking several pages to make my position clear. But when our respective expositions and arguments are all *Page 591 boiled down, the difference of opinion is that which I have just expressed.
Count No. 1 charged the appellant with the crime of abortion in that (omitting allegations as to venue and time) he
(1) used certain instruments
(2) with intent to produce the miscarriage of Beulah LeClair,
(3) that action not being necessary
(a) to preserve her life or
(b) to preserve the life of the child of which she was then pregnant.
Count No. 2, as it appeared in the information, charged him with manslaughter in that, "as a part of the transaction alleged in count No. 1 and connected therewith" (omitting allegations as to venue and time), he
(1) willfully killed an unborn quick child
(2) of which Beulah LeClair was then pregnant,
(3) by injuring the mother of the unborn quick child
(4) by the use of certain instruments.
This count was unquestionably sufficient to charge manslaughter under Rem. Rev. Stat., § 2396, which reads as follows:
"The willful killing of an unborn quick child, by any injury committed upon the mother of such child, is manslaughter."
At the conclusion of the state's case, appellant moved for a dismissal of count No. 2 on the ground that the state had failed to prove that the fetus was a quick child, or that its death was occasioned by any injury to the mother. The trial court was impressed with the latter contention and, after considerable unreported argument, the following colloquy occurred:
"MR. SHINN: Then the only change is the clause `By injuring said mother' is deleted? THE COURT: Yes, I think that is surplusage."
This eliminated (3), supra, from count No. 2 and meant an abandonment of the charge of manslaughter under Rem. *Page 592 Rev. Stat., § 2396. Count No. 2 could then charge manslaughter only if read in connection with No. 1, and then under Rem. Rev. Stat., § 2397, which reads as follows:
"Every person who shall provide, supply or administer to a woman whether pregnant or not, or shall prescribe for or advise or procure a woman to take any medicine, drug or substance, or shall use or employ, or cause to be used or employed, any instrument or other means, with intent thereby to procure the miscarriage of a woman, unless the same is necessary to preserve her life, in case the death of the woman or of any quick child of which she is pregnant is thereby produced, shall be guilty of manslaughter."
When the defense had completed its case and was ready to rest, except for the cross-examination of the defendant, the matter of the sufficiency of count No. 2 was again considered, and the state moved that count No. 2 of the information be amended to conform to the proof by adding the words "unless the same is necessary to preserve the life of the pregnant mother." The motion was granted over the protest that appellant was now being charged with a different crime. *Page 593
At this stage of the proceedings, we have the following situation:
Allegations of Allegations Necessary
Allegations of Count No. 2 as to Charge Manslaughter
Original Count No. 2 Amended under Rem.
Rev. Stat., § 2397
(1) Willfully killed an (1) Willfully killed (1) Killed an unborn
unborn quick child an unborn quick child quick child
(2) of which Beulah (2) of which Beulah (2) of which Beulah
LeClair was pregnant, LeClair was pregnant, LeClair was pregnant,
(3) by injuring the
mother of the child
(4) by the use of (3) by the use of (3) by the use of
certain instruments. certain instruments, certain instruments,
(4) with the intent to
procure the miscarriage
of Beulah LeClair,
(4) that action not (5) that action not
being necessary to being necessary to
preserve the life of preserve the life of
Beulah LeClair. Beulah LeClair.
The phraseology of the proposed amendment was not apt, but it was clearly intended to add the fifth of the essential elements to the information, and it was so understood by all parties.
It will be observed that count No. 2, as amended, does not contain the fourth of the necessary elements, i.e., that the instruments were used with the intent to procure the miscarriageof Beulah LeClair. It is this omission that the majority holds is fatal to the sufficiency of count No. 2 as amended. It must be conceded that if this were the only count in the information, the conviction could not be sustained, and the case of State v.Severns, 13 Wn.2d 542, 125 P.2d 659, quoted in the majority opinion, would be in point. However, count No. 1 charges abortion in that instruments were used by appellant with intentto produce the miscarriage of Beulah LeClair, and count No. 2, as *Page 594 amended, charges manslaughter "as a part of the transaction alleged in Count 1 and connected therewith."
The general rule is that where a joinder of several counts is permitted in one information or indictment, every count should appear upon the face of it to charge the defendant with a distinct offense; yet the allegations of one count may be made a part of a subsequent count by words of appropriate reference, so as to avoid unnecessary repetition: 27 Am. Jur. 737; Linn v.United States, 234 Fed. 543; Clark v. United States, 298 Fed. 293; United States v. Main, 28 F. Supp. 550; Burroughs v.United States, 290 U.S. 534, 78 L.Ed. 484, 54 S.Ct. 287; Durdenv. State, 29 Ga. App. 548, 116 S.E. 41; People v. Lewis,98 N YS. 83, 111 App. Div. 558; State v. Vaughan, 93 W. Va. 419,117 S.E. 127.
We are called upon to determine whether the words "as a part of the transaction alleged in Count 1 and connected therewith" are such words of appropriate reference as to make the allegations of count No. 1 a part of count No. 2 as amended. In certain jurisdictions, the rule seems to be that the words of reference must be clear and specific and must leave no doubt as to what provisions of another count are intended to be incorporated. The words here used would not come within such a rule; they are general and do not indicate what specific provisions of the other count are intended to be incorporated. However, we have, in this state, taken a liberal rather than a technical view in the matter of sustaining indictments and informations. In the early case ofState v. Day, 4 Wn. 104, 29 P. 984, it was said:
"The ancient forms and technicalities of the common law, which subserved no purpose except to embarrass and impede the administration of justice, have been wisely discarded, and we now have a system of criminal pleading which neither disregards any of the substantial rights of the accused, nor permits him to shield himself from just punishment by requiring the insertion in the indictment or information of allegations in nowise necessary to inform him of the `nature and cause of the accusation against him,' but which under the old system were necessary to be *Page 595 alleged and proved, or an acquittal would result, though the fact of guilt were otherwise manifest.
"Under our statute an indictment or information is sufficient if it can be understood therefrom that the act or omission charged as the crime is clearly and distinctly set forth in ordinary and concise language without repetition, and in such a manner as to enable a person of common understanding to know what is intended; and `that the act or omission charged as the crime is stated with such a degree of certainty as to enable the court to pronounce judgment upon a conviction according to the right of the case.'"
The subtleties and hypertechnical refinements of an earlier day, which Lord Hale said "tend to the reproach of the law, to the shame of the government, to the encouragement of villainy and to the dishonor of God," have given way to the forthright and common-sense test of whether a person of common understanding can, from the allegations of the indictment or information, know the exact nature of the charge against him. Rem. Rev. Stat., §§ 2055(2) and 2065(6) [P.P.C. §§ 132-5, 132-29]; State v.Bokien, 14 Wn. 403, 44 P. 889; State v. Ryan, 34 Wn. 597,76 P. 90; State v. Nelson, 39 Wn. 221, 81 P. 721;State v. Fillpot, 51 Wn. 223, 98 P. 659; State v.Garland, 65 Wn. 666, 118 P. 907; State v. Gilfilen,124 Wn. 434, 214 P. 831; State v. Wray, 142 Wn. 530,253 P. 801; State v. Hull, 182 Wn. 681, 48 P.2d 225; State v.Hall, 185 Wn. 685, 56 P.2d 715; State v. Dodd, 193 Wn. 26,74 P.2d 497. While none of these cases involve the precise question here presented, their reasoning is persuasive, particularly when coupled with the statutory provisions referred to, to wit:
"§ 2055. The indictment or information must contain, — . . .
"2. A statement of the acts constituting the offense, in ordinary and concise language, without repetition, and in such manner as to enable a person of common understanding to know what is intended."
"§ 2065. The indictment or information is sufficient if it can be understood therefrom, — . . .
"6. That the act or omission charged as the crime is clearly and distinctly set forth in ordinary and concise *Page 596 language, without repetition, and in such a manner as to enable a person of common understanding to know what is intended; . . ."
Applying that test to the instant case, the accused, if a person of common understanding, would know from the allegations of count No. 2 of the information, as amended, that it was charged that, as part of the abortion he had performed by using certain instruments with intent to produce the miscarriage of Beulah LeClair, he had killed an unborn quick child of which Beulah LeClair was then pregnant, and that such action on his part was not necessary to preserve the life of Beulah LeClair.
By specific averment and necessary implication, count No. 2, as amended, contains all the facts necessary to constitute the offense of manslaughter (Rem. Rev. Stat., § 2397), set forth "in such manner as to enable a person of common understanding to know what is intended."
As was said in State v. Fillpot, supra:
"In reading the information before us, it is impossible to see how the appellant could be misled, or how he could fail to understand the exact nature of the charge preferred against him."
In State v. Bokien, supra, and State v. Ryan, supra, we were concerned with the determination of whether the information stated facts sufficient to constitute the offense of which the accused had been convicted. In the former case, it was said:
"It is a well settled rule that an indictment or information must set forth all the facts and circumstances necessary to constitute the crime sought to be charged. If, therefore, as defendant claims, the omitted allegations are necessary under our statute in order to charge the offense of obtaining property by means of false pretences, it follows that the information is insufficient. . . . It seems to us that whatever is necessarilyimplied from the language used ought to have the same force andeffect as if specifically alleged, and that if it appears from the information, though not by direct and positive averment, that a party was induced to part with his property by reason of certain specified *Page 597 false pretences, such information is sufficient under the statute, if not objectionable in other respects. . . ." (italics mine);
and in the latter case:
"While some, if not all, of these objections might be held valid under the strict rule of the common law applicable to such cases, we do not think they are tenable when tested by our own statutes relating to the forms of pleadings in criminal actions, and to the rules by which the sufficiency of such pleadings is to be determined. . . .
"But he [appellant's counsel] does insist in his argument that the information itself was so defective that it failed to apprise the appellant of the `nature and cause of the accusation against him.' It is a well-settled rule in criminal prosecutions that the indictment or information must set forth all the facts which are necessary to constitute the crime charged, and which must be proved in order to convict the accused; and we are of the opinion that the information in question states all the facts necessary to constitute the offense, `in such manner as to enable a person of common understanding to know what is intended.' It seems to us that it apprised the appellant of everything he was required to meet at the trial, and that he was not prejudiced in his defense by any of the alleged defects of the information.
". . . The appellant has cited several cases which, directly or indirectly, support his position upon the point now under consideration, but we believe the cases to which we have particularly referred announce a doctrine which is supported by the better reason, and more nearly accords with the spirit of our statutes. The doctrine of the above cases, briefly stated, is that that which is necessarily implied need not be specifically averred."
It is frequently said that the purpose of an indictment is to apprise the accused of the crime charged against him, with such reasonable certainty that he can make his defense and not be taken by surprise by the evidence at the trial and can be protected, after judgment, against another prosecution for the same offense. Berger v. United States, 295 U.S. 78,79 L.Ed. 1314, 55 S.Ct. 629; State v. Randall, 107 Wn. 695,182 P. 575; State v. Karsunky, 197 Wn. 87, 84 P.2d 390. *Page 598
There was no possibility that the appellant could be misled as to the charges against him or surprised by the evidence against him. The state's evidence was already in when the first amendment, by deletion, was made. The second amendment added no element not previously alleged. There is no possibility of his again being prosecuted for the death of the unborn quick child. Count No. 2 of the information, as amended, has served every purpose for which it was intended. I am satisfied that count No. 2, as amended, with count No. 1 made a part thereof by reference, was sufficient to charge the crime of manslaughter.
The majority says that the "common understanding" rule can be applied only if the information itself charges a crime. There is, of course, nothing to discuss if the information does not charge a crime. The authorities cited by the majority recognize that the allegations of one count may be made a part of a subsequent count, and the question here is whether the words, "as a part of the transaction alleged in Count 1 and connected therewith," are words of reference and, if so, whether they are sufficiently clear and explicit. Unless the "common understanding" rule also has reference to the meaning to be attached to the words of reference, any count which does not in itself, without reference to any other, contain every element of the crime charged, would be fatally defective; and that clearly is not the law.
Rem. Rev. Stat., § 2055(2), supra, says that an indictment or information must state the acts constituting the offense in such a manner as to enable a person of common understanding to know what is intended. Rem. Rev. Stat., § 2065(6), supra, says that an indictment is sufficient if the acts or omissions charged as a crime are set forth in such a manner as to enable a person of common understanding to know what is intended.
The case of Durden v. State, 29 Ga. App. 548, 116 S.E. 41, is squarely in point on the question of whether the "common understanding" rule applies to words of reference and the allegations referred to. In that case, the indictment contained two counts. The first count charged the offense of forgery and incorporated a complete copy of the writing *Page 599 alleged to have been forged. The second count charged the offense of uttering the forged instrument, without incorporating the writing alleged to have been forged and showing it only by reference to the writing set out in full in the first count. The charging clause of the second count was
". . . that the defendant `did then and there unlawfully, falsely and fraudulently utter and publish as true the abovedescribed false and fraudulent, forged and altered paper,acquittance and receipt, then and there knowing the same to be forged, and did then and there so utter and publish the same with intent then and there to defraud Mrs. E. Goette.'"
The defendant was acquitted on count No. 1 and convicted on count No. 2, and the question presented was the sufficiency of count No. 2. The court cited the Georgia Penal Code, § 954,i.e.:
"`Every indictment or accusation of the grand jury shall be deemed sufficiently technical and correct, which states the offense . . . so plainly that the nature of the offense charged may be easily understood by the jury'";
and concluded that
". . . the indictment, of which each count is only a part, still `states the offense . . . so plainly that the nature of the offense charged may be easily understood by the jury,' as well as by the court and the accused, without reference to any matter other than the indictment before them."
It seems clear to me that the "common understanding" rule applies to the information as a whole, and that if a person of common understanding, applying that understanding to the words of reference used and to the allegations referred to, knows what is intended, and an offense is thereby charged, the information is sufficient.
An interesting case from the supreme court of the United States is Burroughs v. United States, 290 U.S. 534, 78 L.Ed. 484,54 S.Ct. 287. Burroughs was charged with substantive violations of the corrupt practices act in eight separate counts, all of which were held to be insufficient. The ninth count charged Burroughs and others, "then well knowing all the premises aforesaid," with unlawfully and feloniously *Page 600 conspiring to commit the four offenses charged against Burroughs in the first, third, fifth, and seventh counts of the indictment. The tenth count charged, in substantially identical language, a conspiracy to commit the four offenses charged in the second, fourth, sixth, and eighth counts of the indictment. The ninth and tenth counts, being the conspiracy counts, were upheld, and the court said:
"We are of the opinion that these allegations are sufficient in each count to charge a conspiracy to violate the pertinent provisions of the act. Knowledge of the facts constituting thecontemplated substantive offenses is sufficiently alleged by thephrase, `well knowing all the premises aforesaid.'" (Italics mine.)
As stated in the beginning of this dissent, being satisfied that the words in count No. 2, "as a part of the transaction alleged in Count 1 and connected therewith," are appropriate words of reference to make the allegations of count No. 1 a part of count No. 2, I believe that the conviction on count No. 2 should be affirmed.
MALLERY, C.J., and SIMPSON, J., concur with HILL, J. *Page 601