Certiorari to review an order of the Superior Court for Spokane County, Greenough, J., entered October 15, 1945, vacating a judgment and sentence entered upon a plea of guilty.
Beals, J. Millard, Steinert, Simpson, and Jeffers, JJ., concur.
October 15, 1945, William F. Plumb filed in this court his petition (supported by an affidavit) for an alternative writ of certiorari, directed to the Honorable Charles W. Greenough, a judge of the superior court of the state of Washington for Spokane county, requiring the judge to certify to this court a transcript of the record and proceedings
had before him in a cause entitled State of Washington, plaintiff, v. William F. Plumb, defendant, relator contending that, in that action, the court had not proceeded in accordance with the course of common law, and had acted without, and in excess of, the court's jurisdiction. An alternative writ having been issued, the respondent caused to be filed herein a properly certified transcript of the record, and, in due course, the matter was submitted to this court for decision.
The following situation is disclosed by the transcript of the record of the superior court on file in these proceedings:
By an information filed in the superior court for Spokane county September 24, 1945, relator was charged with the crime of incest, the charging portion of the information reading as follows:
"That the said defendant, William F. Plumb, in the County of Spokane, State of Washington, on or about the 26th day of August, 1945, then and there being, did then and there willfully, unlawfully, and feloniously have sexual intercourse with Esther Plumb, a female nearer of kin to the said defendant than second cousin, said Esther Plumb being the daughter of the said defendant, William F. Plumb."
Relator, with his attorney, appeared before the court September 27, 1945, and entered a plea of "guilty as charged," whereupon a judgment of guilty was regularly entered, and relator was sentenced to confinement in the Washington state penitentiary for a term of not more than ten years. No appeal from this judgment and sentence was taken, and relator was imprisoned in the county jail awaiting transfer to the state penitentiary.
Possibly the information above referred to was prepared under the assumption that the statute in force when the crime was committed was Rem. Rev. Stat., § 2455, which reads as follows:
"Whenever any male and female persons, nearer of kin to each other than second cousins, computing by the rules of the civil law, whether of the half or the whole blood, shall have sexual intercourse together, both shall be guilty of incest and punished by imprisonment in the state penitentiary for not more than ten years."
As a matter of fact, this statute had been amended by Laws of 1943, chapter 111, p. 255 (Rem. Supp. 1943, § 2455 [P. P. C. § 113-67]), to read as follows:
"Sexual intercourse between any male and female persons, nearer of kin to each other than second cousins, computing by the rules of civil law, shall constitute the crime of incest and shall be punished as follows:
"(1) When such act is committed by any male or female person upon a child under the age of ten (10) years, such male or female person shall be guilty of incest and be punished by imprisonment in the state penitentiary for life;
"(2) When such act is committed by any male or female person upon a child of ten (10) years and under fifteen (15) years of age, such male or female person shall be guilty of incest and be punished by imprisonment in the state penitentiary for not more than twenty (20) years;
"(3) When such an act is committed by any male or female person upon a child of fifteen (15) years of age and under eighteen (18) years of age, such male or female person shall be guilty of incest and be punished by imprisonment in the state penitentiary for not more than fifteen (15) years;
"(4) When such act is committed by persons eighteen (18) years of age or more, such persons shall both be guilty of incest and be punished by imprisonment in the state penitentiary for not more than ten (10) years."
October 9, 1945, the prosecuting attorney filed a motion to vacate and set aside the plea, judgment, sentence, and commitment. This motion was based upon an affidavit by a deputy prosecuting attorney, in which it was stated that the plea, judgment, sentence, and commitment were void for the reason that the age of the victim was not set forth in the information, and that the sentence imposed was erroneous because of the enactment of chapter 111, p. 255, Laws of 1943, supra.
The motion was heard the day it was filed, the relator and his counsel being present, and, as stated by relator's counsel, in his affidavit filed in support of relator's application for certiorari, objecting to the vacation of the ...