(119 Wash. 529)

STATE v. HART. (No. 16830.) (Supreme Court of Washington. April 11,

1922.)

1. Rape 59 (20, 21)-Admission of attempt not shown to have occurred at date elected by state insufficient to warrant submission of attempt.

Where the prosecuting witness testified to several completed acts of carnal knowledge, and the state elected to stand on one of them, evidence of an admission by defendant of an attempt to commit the offense charged, the place or time of which did not appear, did not warrant an instruction submitting the offense of an attempt to commit the crime charged, notwithstanding Rem. Code 1915, § 2060, providing that the precise time need not be stated, etc.

2. Indictment and information 169-General denial and alibi proper under plea of not guilty.

A general denial, supplemented by an alibi, is a proper procedure under the general issue of not guilty.

3. Criminal law 678 (4)-Election waives other acts, and also waives proof of attempt not occurring at date elected.

frankly that each transaction was a completed act. She did not mention any other occasion, nor did she testify that he attempted to have sexual intercourse with her at any time that he did not fully accomplish his purpose. Another witness for the state, one Harry A. Cook, testified that, after the appellant was apprehended, he was present at an office at the police headquarters building when a representative of the prosecuting attorney's office questioned the appellant concerning the complaint against him, and that the appellant denied the accusation, but later admitted he had attempted sexual intercourse with the girl. At the close of the state's case, upon motion of counsel for the appellant, the state elected to stand upon the act testified to have occurred on June 7.

The defense was a denial of any improper relations with the prosecutrix, and an alibi. There was an abundance of evidence to support the alibi, but it of course was a matter for the jury.

[1] After instructing the jury generally, including the law upon the subject of the crime charged, the court submitted to them the lesser offense of attempt to commit the crime charged. The instruction was as follows:

An election by the state to rely on one of the offenses shown by its evidence waives, as a basis for a conviction, all other similar acts disclosed by the proof, and likewise waives all proof of an attempt to commit the crime charg-son ed, unless the proof tends to show that the attempt occurred on the date specified in the state's election.

Department 1.

Appeal from Superior Court, King County; E. M. Card, Judge.

Charles Hart was convicted of attempted carnal knowledge of a female child, and he appeals. Reversed and remanded, with direc

"An act done with intent to commit a crime, and tending, but failing, to accomplish it, is an attempt to commit that crime. Every perwho shall do any act with intent to commit the crime of carnal knowledge of a child, and tending, but failing, to accomplish it, shall be guilty of the crime of attempted carnal knowledge of a child."

The giving of this instruction, duly excepted to, is one of the errors assigned. Certainly there is no testimony in the case showing anything but completed acts of sexual relations, other than the testimony of Harry A. Cook; and his testimony as to the adtions. mission made by the appellant does not inAlbert D. Martin and Wm. R. Bell, both of vest that admission with the remotest idea Seattle, for appellant.

of either place or time. If the testimony had Malcolm Douglas and Bert C. Ross, both been that the appellant had admitted he made of Seattle, for the State.

an attempt on June 7, 1920, or at the place the girl testified the completed act, relied on

MITCHELL, J. The appellant was charg-by the state, took place, the instruction would ed by an information with the crime of carnal knowledge of a female child not his wife. He was by a jury found guilty of attempted carnal knowledge of the girl, and has appealed.

We shall notice only two assignments of error: (1) The giving of an instruction; and (2) the denial of a motion for a new trial.

The prosecuting witness testified that the appellant had sexual intercourse with her on four occasions: About March 12, 1920; March 19, 1920; April 20 to 25, 1920; and June 7, 1920. The acts occurred at different places, the last one at 3410 Albion place, Seattle. It appears that she testified fully and

be differently circumstanced; but, as the case was made, the state having elected to stand upon that date as the time of the offense for which a conviction was asked, and she having testified as to the place, the instruction was erroneous.

[2] Section 2060, Rem. Code, provides that the precise time when the crime was committed need not be stated, but it may be alleged to have been committed at any time before the date of the signing of the indictment or filing of the information, and within the time an action may be commenced therefor. But there is the added qualification contained in the section of an exception where the

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(205 P.)

time is a material ingredient. However, the proposition presented in this case is one of proof, and not of pleading. It is a question of proof in a case where the defense is a general denial, supplemented by that of an alibi, which is always a proper procedure under the general issue of "not guilty." In the case of State v. Moss, 73 Wash. 430, 131 Pac. 1132, which was a prosecution for adultery, wherein a number of acts were shown, and wherein there was no defense of alibi, the court, after finding there had been, in legal effect, an election by the state to rely on a particular act for a conviction, said:

"While under Rem. & Bal. Code, § 2060, the precise time at which the crime was committed need not be stated in the indictment or information, but may be placed at any time prior to the finding of the indictment or filing of the information within the time in which the action may be commenced, and while this latitude is usually allowable both in allegation and proof, still when an election is made, on proof of several acts, to rely upon an act committed at a specific time, the accused can only be convicted of the specific act constituting the offense committed at about that time and intended to be so designated and distinguished

from other acts in evidence."

The case of State v. King, 50 Wash. 312, 97 Pac. 247, 16 Ann. Cas. 322, is in point. The defendant had been convicted of the crime of obtaining money under false pretenses. The defense was an alibi. The jury were instructed:

"I will say in that connection that the exact date is immaterial. It does not make any difference so far as the crime is concerned if the defendant committed the crime as charged at any time within the period of three years prior

to the time the information was filed.

The case of State v. Morden, 87 Wash. 465, 151 Pac. 832, is to the same effect. It was a case of rape, in which the prosecuting witness definitely fixed the exact date of the offense on a day when she was working for the defendant on his premises, and the defendant undertook to establish an alibi for the prosecutrix by showing she was not working for the defendant, nor on his premises, on that day. The jury were instructed that the date charged was not a material allegation, and that it was enough for the state to prove any other day, on or about that date, within three years. This court held the instruction was wrong and reversible. It was said:

"The time charged was, therefore, as clearly material as it would have been had the defense been an alibi."

The case of State v. King, supra, was relied on, and, continuing, it was said:

"In all reason, as it seems to us, it is just as difficult to imagine a case where the defense is that the victim of a personal assault was not present at the time and place when the assault must have been committed, if at all, in which the time of the commission of the offense would not be material to such a defense. 2060 (P. C. 135, § 1025), it is not essential that While under the statute, Rem. & Bal. Code, the precise time of the offense charged be alleged in the indictment or information, the question here presented is not one of allegation, but of proof and of the necessity for an instruction applicable to the proof."

[3] It would be entirely irregular and without reason to say the rule is applicable to the offense charged and not applicable to the crime of an attempt to commit that of"fense. The effect of an election on the part of the state is to waive, as a basis upon

Upon holding the instruction to be mis- which a conviction shall primarily rest, all leading and erroneous, it was said:

"The witnesses for the state had fixed the date when the crime was committed as being between the 12th and 15th day of February, 1907. The defense was that the defendant was not the person who obtained the money, and that he was sick at home. unable to leave his room between those dates. The time of the commission of the crime was therefore clearly material. There are many cases where no issue is based upon the time when the crime was committed. In such cases this instruction would be correct, but was misleading and erroneous in this case because the time was definitely fixed by the state, and the defense of an alibi was based upon that time. It is difficult to imagine a case where the time of the commission of a crime is not material to the defense of alibi."

other similar acts disclosed by the proof. It must be held that it likewise effectuates a waiver of any and all proof of an attempt to commit the crime charged, unless such proof tends to show that the attempt occurred on the day specified in the state's election. There was no such proof in this case, and hence the instruction complained of should not have been given.

The motion for a new trial should have

been granted. Our conclusion does away with any necessity to discuss other assignments of error.

Reversed and remanded, with directions to grant a new trial.

PARKER, C. J., and TOLMAN and BRIDGES, JJ., concur.

1. Principal and agent 76(1) Principal held to have waived right to recover from agent loss on goods purchased without authority.

Where an agent bought for his principal a

Evidence on a motion for a new trial of a proceeding, under Laws 1919, p. 709, to adjudge defendant the father of an illegitimate child for newly discovered evidence, held not to warrant the Supreme Court in interfering with the dis-number of muskrat skins without authority to cretion of the trial court in denying a new trial.

do so, and the principal, after learning that the agent had instructed the dealer from whom he bought to resell them at a profit, if possible, directed the skins to be shipped to the principal, and, after holding them six months, sold them at a loss, without indicating an intention to hold the agent liable therefor until in the agent's action for salary, more than a year after the transaction, the principal had waived his right to charge the loss against the agent.

Leon B. Kenworthy, of Dayton, for ap- 2. Estoppel pellant. tention.

Hardy E. Hamm and A. F. Appleton, both of Dayton, for the State.

HOVEY, J. The appellant was adjudged to be the father of an illegitimate child in a proceeding brought under the provisions of chapter 203 of the Laws of 1919. The case was tried to a jury, and the court entered a judgment requiring the payment of certain sums as provided in the act.

No useful purpose will be served by reciting the evidence. It is ample to sustain the judgment rendered.

The question presented on this appeal is the refusal to grant a new trial upon newly discovered evidence.,

The parties live in Dayton, and the child was born in Lewiston, Idaho, and after the judgment was rendered counsel for appellant discovered that the complaining witness had given the name of a man other than the appellant as the father of the child. The man bearing the other name did not live in Dayton, but had resided for a short time in Walla Walla. The affidavits do not assert that the complaining witness was ever known to be in the company of the other man. Counter affidavits were filed by the state in one of which the complaining witness says that she adopted the other name for the purpose of shielding the appellant, who was unmarried at the time, and in the hope that appellant would marry her. There are some inconsistencies in her statements which might influence the trial of the action, but the granting of a new trial is so much within the discretion of the trial court that we cannot say that the showing made would justify this court in interfering with the discretion as exercised in this case. The judgment is affirmed.

53-Waiver is question of in

Waiver is a question of intention, so that each case is a law unto itself.

Department 1.

Appeal from Superior Court, King County; Walter M. French, Judge.

Action by S. H. Cohen aginst R. S. Robinson. Judgment for plaintiff, and defendant appeals. Affirmed.

Geo. H. King and M. H. Van Nuys, both of Seattle, for appellant.

Philip Tworoger, of Seattle, for respondent.

MITCHELL, J.

For a number of years the defendant, a fur dealer of Winnipeg, Canada, employed the plaintiff as his agent in Seattle for the buying of furs. On February 5, 1921, this action was commenced to recover for the agent's unpaid salary from May 15, 1920, to October 15, 1920. In his answer the defendant denied the agency for the period mentioned, and, among other things, affirmatively set up a counterclaim for damages, in that in March, 1920, contrary to instructions, plaintiff as agent purchased certain furs on which the defendant sustained a loss. This was denied by a reply.

On the trial of the case the defendant admitted the agency and salary for the period covered by the complaint, and that it had not been paid, whereupon the case was tried, without a jury, on the counterclaim. From findings, conclusions, and judgment against the defendant he has appealed.

The only loss claimed to have been sustained was on 722 muskrat skins included in the purchase. It appears that on March 15, 1920, appellant by wire directed his agent not to buy any more furs without instrucPARKER, C. J., and MAIN and HOL- tions. Contrary thereto, the agent agreed to COMB, JJ., concur.

buy a quantity of furs from a Seattle dealer

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(205 P.)

on or about March 23, 1920. On March 26 | agent responsible for any loss, although the the agent paid for the goods, telegraphed agency continued for six or seven months that he had made the purchase, and wrote to the appellant, inclosing the invoice of the goods purchased, stating that he could not resist buying, as he thought it a good buy, and that he tried to get an option to purchase, but could not do so. On the next day, March 27, he received a night letter from the appellant, saying he did not want the goods, that he, the agent, had bought them against instructions, and to cancel the deal. On that day, answering the night letter, the respondent wrote to the appellant, saying he was sorry about the matter, and further stated:

"I didn't cancel the deal, as I had already paid him yesterday; even I hadn't have paid Woodruff, I wouldn't have canceled anyhow, because that would queer us from doing business. I am leaving the goods with Woodruff, and told him to try and get us a little profit;

thereafter. Upon learning that the agent, because of the night letter to cancel the order, had instructed the dealer in Seattle from whom the goods were purchased to sell them at a profit, the appellant ordered them shipped to Winnipeg. That, of course, he had the right to do, because they were his goods, but it is worthy of consideration in connection with appellant's conduct, indicating implied ratification, or, rather, waiver of any claim against the agent in case any loss was suffered. For the same purpose it is to be noticed that other furs in the same purchase were in no way accounted for or subsequently mentioned by the appellant. If sold at a profit, he kept, it, and seeks to charge the loss on the rat skins to his agent. On selling the rat skins in October, 1920, he did not then advise the respondent of his loss, nor at any time or in any manner claim or pretend any liability against the respond

he has another 300 rats a little better than ours he wants $3 each. I am satisfied that the 722 rats were bought about 15 per cent. cheap-ent until his answer in this lawsuit which er than Tacoma sale. Another reason prompted me to buy those rats was, I was informed around town that rats is holding up well, and I was afraid of losing the chance, so I closed the deal."

Upon receipt of this letter appellant on March 31 telegraphed that the furs be shipped to Winnipeg. They were promptly shipped as ordered. On that same day, March 31, 1920, the appellant wrote to the respondent, among other things, as follows:

*

"I am rather surprised, after you found you couldn't cancel Woodruff's deal, or didn't care to do so, that you held the goods back with If in out any instructions to do so. your opinion there was a possibility of selling the goods favorably at Seattle, it appears to me the first thing you should have done was to wire, asking me whether such action would meet with my views.

-and further in the same letter, as follows: "I will advise you just as soon as I am open for any more goods which I hope will be in about thirty days. Meantime, if anything really special turns up, you can submit it to me, but in no case buy anything at any price without submitting."

[1] After receipt of the goods in Winnipeg the appellant held them until October, 1920, and sold them at a loss, which he now seeks to recover from his agent. While it is quite true, because of the character of the agency, the appellant was bound to stay by the contract of purchase, it is significant that so far as any liability of the agent was concerned there never was any claim or suggestion by the appellant that he would hold the

was verified by him on May 2, 1921, more than a year after the transaction, and more than six months after he knew what his loss

was.

There is in the case no claim of fraud on the part of the agent, nor anything other than good faith on his part in making the purchase. Unquestionably he thought, although disobeying instructions, that he was making a good deal for his principal; and,

while that would not absolve him from liability, yet we think the conduct of the appellant upon learning all the facts, including his long slience as to any responsibility of the respondent, broken only in the lawsuit Some against him, does relieve the agent. contention is made that the respondent is not permitted to rely upon the doctrine of ratification, as it was not pleaded, but, let that be as it may, we have considered in introduced by the appellant, together with a reaching our conclusion only the testimony portion of that on behalf of the respondent that was neither objected to nor disputed.

[2] A number of authorities are cited in

the respective briefs, which are not specially helpful here other than to observe they all lead to the well-settled rule, tersely stated in appellant's brief, that "waiver is a question of intention." That is, each case is one unto itself. Tested by that rule, we conclude the trial court reached and adopted the proper findings, conclusions, and judgment in this

case.

Affirmed.

PARKER, C. J., and HOVEY and FUL LERTON, JJ., concur.

There was a verdict by the jury in favor of the plaintiff in the sum of $1,575. Later the plaintiff elected to, and did, waive any amount of the verdict in excess of $1,271. A judgment was entered on the verdict in Appeal from Superior Court, Thurston that sum. In its appeal the defendant has County; D. F. Wright, Judge.

Troy & Sturdevant and Geo. F. Yantis, the completion of his contract and unable all of Olympia, for respondent.

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