Worswick, C.j. Morgan, J., concurs. Petrich, J., dissents by separate opinion.
The State appeals an order in arrest of judgment (CrR 7.4), setting aside Kurt Hovrud's conviction for false swearing. RCW 9A.72.040. We affirm.
Hovrud allegedly lied under oath while being interrogated by his insurance company's lawyer, who was investigating Hovrud's fire loss claim. The examination under oath was required by a provision in Hovrud's standard form insurance policy.
RCW 9A.72.040 provides, in relevant part:
(1) A person is guilty of false swearing if he makes a false statement, which he knows to be false, under an oath required or authorized by law.
(Italics ours.) Unlike the statutes involved in People v. Watson, 85 Ill. App. 3d 649, 406 N.E.2d 1148 (1980) and State v. Devitt, 82 Wis. 2d 262, 262 N.W.2d 73 (1978) on which the dissent relies, RCW 9A.72.010(3) defines the phrase "required or authorized by law", as follows:
[a]n oath is "required or authorized by law" when the use of the oath is specifically provided for by statute or regulatory provision. . .
The State argues that the requirement of statutory authorization was satisfied in this case because Hovrud's insurance policy, a "standard fire policy," permitted an
examination under oath and was an approved policy under a regulation promulgated within his statutory authority by the Insurance Commissioner.*fn1 We disagree.
[1, 2] A penal statute must be literally and strictly construed in favor of the accused. State v. Hornaday, 105 Wash. 2d 120, 127, 713 P.2d 71 (1986). The statute must give a definite warning of the prohibited conduct. State v. Dougall, 89 Wash. 2d 118, 121, 570 P.2d 135 (1977).*fn2 RCW 9A.72.040 did not warn Hovrud that he would be exposed to criminal prosecution by taking the insurance company's oath.
[3, 4] The dissent argues that the requirement that the oath be specifically provided for by the regulation is satisfied because of a statutory principle of incorporation by reference. The dissent would extend that principle to hold that a regulation incorporates by reference all provisions of an insurance policy, including the oath provision in Hovrud's policy that the ...