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AGO 1955 No. 150 - October 26, 1955
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Don Eastvold | 1953-1956 | Attorney General of Washington

CRIMES ‑- FALSE SUBSCRIBING IN CONNECTION WITH PUBLIC ASSISTANCE ‑- DEFINING CRIME AND PROVIDING PENALTY

RCW 74.08.055 defines a specific crime for verifying by a written declaration made under penalty of perjury any application, statement, or other paper which he does not believe to be true and correct as to every material matter, and makes it a felony which is punishable by imprisonment for not more than 10 years or by a fine of not more than $5,000, or by both such fine and imprisonment.

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                                                                October 26, 1955

Honorable Charles O. Carroll
Prosecuting Attorney
King County
County-City Building
Seattle, Washington                                                                                                              Cite as:  AGO 55-57 No. 150

Attention:  !ttMr. F. A. Walterskirchen

            Assistant Chief Criminal Deputy

Dear Sir:

            In your letter dated September 28, 1955, you ask the following questions:

            "1. Under which of the following statutes, to-wit: RCW 9.72.010, RCW 9.72.030, or RCW 74.08.055, should a person be charged who is an applicant for or recipient of public assistance who has willfully made and subscribed an application, statement or other papers which contain or is verified by a written declaration that it is made under penalty of perjury and which he does not believe to be true and correct as to every material matter?

             [[Orig. Op. Page 2]]

            "2. If the first question is answered that the person so doing should be charged under RCW 74.08.055, what would be the proper punishment?"

            We answer your questions as follows:

            1. RCW 74.08.055.

            2. Penalty for felony as provided by RCW 9.92.010.

                                                                     ANALYSIS

            Your question is predicated on the second paragraph of RCW 74.08.055, which provides that

            "Any applicant for or recipient of public assistance who wilfully makes and subscribes any application, statement or other paper which contains or is verified by a written declaration that it is made under the penalties of perjury and which he does not believe to be true and correct as to every material matter shall be guilty of a felony."

            RCW 9.72.010 defining perjury in the first degree is declaratory of the common law and was intended to apply in all cases where the false oath is taken, and testimony was given in, or in aid of, a judicial proceeding. State v. Wilson, 83 Wash. 419; State v. Heyes, 44 Wn. (2d) 579.

            RCW 9.72.030 defines and subjects to punishment other offenses against truth, which may be of two kinds: (1) Voluntary false swearing, and (2) false swearing in a proceeding or investigation authorized by law. It is further indicated that such false swearing must be under oath. State v. Howard, 91 Wash. 481.

            In any event, our legislature has seen fit in many instances to provide special perjury statutes covering various types of false swearing; e.g., making or publishing any false bank statement, RCW 30.12.090; false sworn statements under bulk sales act, RCW 63.08.060; false oath in procuring marriage licenses, RCW 26.04.210; false listing of property for taxation, RCW  [[Orig. Op. Page 3]] 84.40.120; and false swearing when challenged at a primary election, RCW 29.85.180.

            InState v. Truax, 130 Wash. 69, in considering Rem. Comp. Stat., § 2253 (now RCW 9.01.020), our court pointed out that

            "To constitute a crime, the act or omission must be forbidden by law and punishable upon conviction."

            In the specific matter under consideration, the legislature has seen fit, as in the specific cases above mentioned, to define the act which is forbidden and to provide the penalty therefor. The act forbidden is the wilful making and subscribing of any application, statement or other paper which is made under penalty of perjury and which the person making does not believe to be true and correct as to every material matter; and the punishment is for one guilty of a felony. Consequently, we conclude that it was the intention of the legislature to define a crime applicable to a specific situation.

            Since we have concluded that RCW 74.08.055 is a special statute defining a particular offense, and prescribing a penalty therefor, your second inquiry is directed as to what the proper penalty should be. The statute states that the offender "shall be guilty of a felony."

            RCW 9.92.010 provides that the punishment for felonies when none is fixed by statute shall be "by imprisonment in the state penitentiary for not more than ten years, or by a fine of not more than five thousand dollars, or by both."

            The specific offense being denominated a felony without any punishment being fixed therefor by the statute creating the offense, every person convicted thereof shall be punished by imprisonment for not more than ten years, or by a fine of not more than five thousand dollars, or by both such fine and imprisonment.

            We trust that the foregoing will be helpful to you.

Very truly yours,

DON EASTVOLD
Attorney General

MITCHELL DOUMIT
Assistant Attorney General

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