In addition to the reasons stated in the majority opinion for affirming the judgment, *Page 473 in which opinion I concur, I desire to add the following which, it seems to me, constitutes further ground for affirmance.
Section 2059, Rem. Comp. Stat. [P.C. § 9272], as amended by Laws of 1925, Ex. Ses., p. 168, ch. 109 [Rem. 1927 Sup., § 2059], quoted in both the majority and minority opinions, establishes three groups of charges which may be joined in one indictment or information: First, "When there are several charges against any person, or persons, for the same act or transaction;" second, where there are several charges "for two or more acts or transactions connected together;" third, when there are several charges "for two or more acts or transactions of the same class of crimes or offenses, which may be properly joined."
It seems clear that, under the first two classifications, felonies, gross misdemeanors and misdemeanors may be joined, if they meet the requirements of either of these provisions of the statute. These two classifications provide for the joining of offenses which are in some manner related, either as arising out of the "same act or transaction" or arising out of "two or more acts or transactions connected together." In my opinion the legislature in establishing the third group of offenses which may be joined did not intend to depart from the principle which underlies the first two groups; that is, the fact of close association between the offenses charged, but intended simply to extend the rule so as to permit the joinder of charges based upon offenses of the same general character when, in the opinion of the court, the same "may be properly joined" in one indictment or information.
The title "Classification of Crimes," contained in Laws of 1909, p. 890, ch. 249 [Rem. Comp. Stat., § 2253], classifies offenses by placing the same upon different planes, the bases of which are determined by *Page 474 the punishment to be inflicted upon conviction. The first two groups associated by § 2059, supra, are formed without regard to any connection of the offenses which may be joined one with another, by reason of such offenses being upon the same plane as regards the punishment to be imposed upon conviction thereof, but rather group the offenses which may be jointly charged between vertical boundaries which extend through the horizontal classification of crimes established by Laws of 1909, supra, and embrace connected offenses, without regard to the penalties. I believe that the legislature, in providing for the joinder of charges based upon "two or more acts or transactions of the same class of crimes or offenses, which may be properly joined," had in mind the same general basis of association which was undoubtedly considered in establishing groups one and two, and did not intend to depart wholly and entirely from the principle followed in establishing such groups, and establish a third group based upon an entirely different principle, that of similarity of degree of punishment, which would permit the joinder of offenses wholly unconnected as to time, place and character. In my opinion the word "class," as contained in § 2059, as amended, refers to offenses of the same character or nature without regard to the "classification of crimes," with regard to punishment, as established by § 1 [Laws of 1909, p. 890] of our criminal code.