AGO 1956 No. 314 - Sep 7 1956
INFORMATION ‑- JOINDER OF ACTIONS ‑- CARNAL KNOWLEDGE AND INDECENT LIBERTIES --INDICTMENT OR INFORMATION ‑- SEPARATION INTO COURTS
The crime of indecent liberties may be joined with the crime of carnal knowledge in the same information as separate charges arising out of the same act.
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September 7, 1956
Honorable Lee J. Reynolds
Port Angeles, Washington
Cite as: AGO 55-57 No. 314
You have requested our opinion of the following question:
May the crime of indecent liberties (RCW 9.79.080, 1955 Supp.) be joined with the crime of carnal knowledge (RCW 9.79.020) in the same information as separate charges arising out of the same act.
We answer your question in the affirmative.
The statutory provisions involved in your question read in pertinent part as follows:
"Every male person who carnally knows and abuses any female child under the age of eighteen years, not his wife, and every female person who has sexual intercourse with any male child under the age of eighteen years, not her husband, shall be punished as follows:"
[[Orig. Op. Page 2]] RCW 9.79.080, 1955 Supp.:
"(1) Every person who takes any indecent liberties with, or on the person of any female of chaste character, without her consent, shall be guilty of a gross misdemeanor.
"(2) Every person who takes any indecent liberties with or on the person of any child under the age of fifteen years, or makes any indecent or obscene exposure of his person, or of the person of another, whether with or without his or her consent, shall be guilty of a felony, and shall be punished by imprisonment in the state penitentiary for not more than twenty years, or by imprisonment in the county jail for not more than one year."
RCW 10.37.060 (RRS § 2059):
"When there are several charges against any person, or persons, for the same act or transaction, * * * which may be properly joined, instead of having several indictments or informations the whole may be joined in one indictment, or information, in separate counts. * * *"
Our research has failed to disclose a case in which the exact question considered in this opinion has been ruled upon by the Washington supreme court. On several occasions, however, the court has construed RCW 10.37.060 (RRS § 2059).
The case ofState v. Dixon, 143 Wash. 262, involved the joinder, in a single information, of charges of statutory rape and carnal knowledge arising out of the same act. The court in construing RRS § 2059 (RCW 10.37.060) stated at page 265:
"* * * This information charges but a single act. The two separate counts charge two separate legal consequences, but not two separate acts. We conclude that so charging appellant was proper, and not prejudicial to his rights."
In re Rice, 24 Wn. (2d) 118, the court in reviewing a writ of habeas corpus which alleges as error, an information charging the defendant with carnal knowledge, incest, and contributing to the delinquency of a minor, all arising from the same act, the court stated at page 124:
[[Orig. Op. Page 3]]
"While it may be said that the charges contained in this information constitute but a single act or transaction, and that the counts simply charge several separate legal consequences of the same act, the charges are nevertheless by the express terms of Rem.Rev.Stat., § 2059, capable of being joined in the same information. * * *"
Our court allows a misdemeanor charge to be joined with a felony charge providing the crimes are of the same nature. State v. Hilstad, 148 Wash. 468. These cases indicate a liberal interpretation by our court of RCW 10.37.060 (RRS § 2059).
The crimes of carnal knowledge and indecent liberties are both set out in chapter 9.07 RCW, and fall under the chapter heading of "Sex Crimes." The very nature of each crime indicates that they may arise from a single act. These crimes are as closely related as are the crimes that were properly joined in 143 Wash. 262, and 24 Wn. (2d) 118.
Our court recognizes one qualification to the joinder in one information of two or more charges arising out of the same act. Our court in construing RRS § 2059 stated inState v. Brunn, 145 Wash. 435, at page 449:
"* * * the rule must never be so applied as to unduly embarrass or prejudice one charged with crime, or deny him a substantial right. * * *"
We trust the foregoing will prove helpful.
Very truly yours,
JOHN S. ROBINSON
Assistant Attorney General