May, 1890.] Dissenting Opinion - HoYT, J. the conclusion that the law, as applicable to the facts of the case, was fully and fairly given to the jury, and that the defendant could not have been prejudiced by the refusal of the court to instruct as requested.. Holding, as we do, that the indictment sufficiently charges manslaughter, the cause must be remanded to the court below, with instructions to set aside the judgment heretofore entered, and to pass sentence upon the defendant for manslaughter, upon the verdict of guilty, and it is so ordered. SCOTT and STILES, JJ., concur. DUNBAR, J., not sitting. HOYT, J. (dissenting). I concede that the weight of authority is with the majority of the court; but I cannot bring my judgment to a concurrence therewith, and hence I am compelled to dissent. The reasoning of the cases relied upon to sustain the position of the majority as to the sufficiency of the indictment seems to me to be overtechnical and unsatisfactory to the common understanding. I agree with the majority that the specific intent to kill must appear, but, unlike them, I am of the opinion that it does appear in the indictment in question. I think that the reasoning of the minority of the court in the two Ohio cases, cited by Chief Justice ANDERS, is more satisfactory than that of the majority, and should be inclined to follow the same and hold this indictment good without the aid of our statute as to the sufficiency of indictments. And, when aided by such statute, it seems to me clear that the position taken by the majority of the court is untenable. It is true that one section of our statute requires that the allegations of the indictment must be direct and certain; but this section must be interpreted in the light of the subsequent sections, which provide in substance that an indictment shall be sufficient if a man of common understanding 18-1 WASH. Dissenting Opinion - HOYT, J. [1 Wash. Inter can determine therefrom with what he is charged. preting these sections together, and I can give them all force only by holding that the legislature meant to state in said first section what a perfect indictment should contain, and how it should be stated; and that the subsequent sections were enacted for the purpose of preventing a person charged with crime from availing himself of a want of a technical compliance with said first section by the prosecution. In other words, the legislature has said every indictment ought to be direct and positive as to all its allegations, but if it is not, the defendant can take no advantage of such fact, provided certain things can be gathered therefrom by a man of common understanding. If this construction of these sections of the statute is correct, the material inquiry in this case is this: Can a man of common understanding see from the indictment in question what crime is intended to be charged, together with certain other necessary allegations as to which no question is made? In my opinion there can be but one answer to this question, and that an affirmative one. Let any man of common understanding read the said indictment, and he cannot possibly fail to see that the prosecution intended to charge the defendant with murder in the first degree. And, if this is so, I think that under our statute the indictment is good as against the objections urged against it. Not only do I think the indictment good, but even if it were bad, I do not think the defendant was in a position to avail himself of its insufficiency as a cause for reversal by this court. For while it is doubtless true that the objection, that the indictment does not state facts constituting the crime of which the defendant was convicted, can be raised for the first time in this court, yet in my opinion, it must be regularly raised by the assignment of errors in the case, or at least by the briefs of one or both of the parties to the appeal. In this case the sufficiency of the indictment is not attacked in the least degree, either in the assignment of errors or in the May, 1890.] Opinion of the Court SCOTT, J. briefs, and was first suggested by the oral argument on the I think that the judgment and sentence of the court below should be affirmed: First, because the indictment is sufficient; and second, because the error upon which the majority of the court founds the reversal was not properly before the court for determination. Wellington M. Clark, Thomas H. Brents, and W. C. Jones, Attorney General, for The State. The opinion of the court was delivered by SCOTT, J.-Defendant was convicted of murder in the second degree, upon an indictment failing to charge a purpose to kill. A motion by defendant in arrest of judgment was sustained. The state appeals. In Leonard v. Territory, 2 Wash. T. 381, the court decided that it was necessary to allege a purpose to kill in order to sustain a conviction for murder under our 17 598 Opinion of the Court-SCOTT, J. [1 Wash. statutes. We have followed that case in Blanton v. State, ante, p. 265. The indictment in this case is sufficient to charge manslaughter. These matters having been discussed in the last case cited, it is unnecessary to review here. Allowance of the motion in arrest of judgment was, therefore, error, and the same is reversed. The cause is remanded, with instructions to the court below to sentence the defendant for manslaughter upon the conviction already had. STILES, J., concurs. HOYT, J., concurs in the result in this case, but not in the reasoning in the two cases, above referred to. ANDERS, C. J., and DUNBAR, J., not sitting. [No. 43. Decided May 31, 1890.] STATE OF WASHINGTON V. So Ho ME. Error to Superior Court, Walla Walla County. Wellington M. Clark, Thomas H. Brents, and W. C. Jones, Attorney General, for The State. The opinion of the court was delivered by SCOTT, J.-This case is in the same condition as State v. So Ho Ge, just decided. The order sustaining the motion in arrest of judgment is reversed, and the court below is directed to sentence the defendant for manslaughter. STILES, J., concurs. HOYT, J., concurs in the result. ANDERS, C. J., and DUNBAR, J., not sitting. May, 1890.] Opinion of the Court- DUNBAR, J. [No. 48. Decided May 31, 1890.] J. E. TERRY V. THE STATE OF WASHINGTON. INDICTMENT EMBEZZLEMENT CONSTRUCTION OF STATUTE. An indictment for embezzlement by an agent which does not allege that the defendant was an agent for hire, is fatally defective under the provisions of Code Wash. T., § 835, as the words "for hire," in said section, qualify each of the classes of persons enumerated therein. Error to Superior Court, King County. Indictment against J. E. Terry for larceny. The facts sufficiently appear in the opinion. Ronald, Piles & Relfe, for plaintiff in error. The omission to charge in the indictment that the defendant was an agent "for hire" is fatal. The court below held that the words "for hire" did not apply to "any officer, agent, clerk or servant," but only any one included in the word "person," and that the word "person" as used in that statute meant any person other than an officer, agent, clerk or servant, and that the words "for hire" only applied to such persons. The familiar rule of ejusdem generis not only settles this, but that the word "person" used in such a connection can only include those of the class described in preceding clause. Endlich, Interp. St., 22 405-7; Barbour v. Louisville, 83 Ky. 95; State v. Grisham, 90 Mo. 163. W. C. Jones, Attorney General, and W. D. Fenton, for The State. The opinion of the court was delivered by DUNBAR, J.-The indictment under which the appellant was convicted of larceny was under 2 835 of the code, and, omitting the formal parts, was as follows: "The said J. E. Terry, on the 25th day of May, A. D. 1 277 10 95 24** 447 38* 864 |