
    [No. 17932.
    Department One.
    July 13, 1923.]
    The State of Washington, Respondent v. Gust Swazey, Appellant. 
    
    Adultery (2)—Information—Sufficiency — Complaint of Injured Spouse. Under Rem. Comp. Stat., § 2457, providing that no prosecution for adultery shall he commenced except on complaint of the husband or wife made before a committing magistrate, or by filing an affidavit with the prosecuting attorney, an information for adultery is fatally defective unless it alleges that the prosecution was commenced on the complaint or affidavit as prescribed by the statute.
    Same (2)—Prosecution—Piling of Affidavit by Injured Spouse. It is not a compliance with such section that the information was verified by one of the same name as stated in the information to be the injured husband, to the effect that he believes it to be true.
    Holcomb and Mitchell, JJ., dissent.
    Appeal from a judgment of the superior court for Pacific county, Hewen, J., entered December 11, 1922, upon a trial and conviction of adultery.
    Reversed.
    
      Fred M. Bond, for appellant.
    
      John I. O’Phelan and A. D. Gillies, for respondent.
    
      
      Reported in 216 Pac. 877.
    
   Mackintosh, J.

The appellant was charged by information with the crime of adultery, under § 2457 Rem. Comp. Stat. [P. C. §8769], which provides as follows:

“Whenever any married person shall have sexual intercourse with any person other than his or her lawful spouse, both such persons shall be guilty of adultery and upon conviction thereof shall be punished by imprisonment in the state penitentiary for not more than two years or by a fine of not more than one thousand dollars: Provided, That no prosecution for violation of the provisions of this section shall be commenced except on complaint of the husband or wife made before a committing magistrate, or by filing an affidavit with tbe prosecuting attorney, nor after one year from tbe commission of tbe offense.”

Tbe information contains no statement that the prosecution bad been “commenced ... on complaint of tbe husband or wife made before a committing magistrate or by filing an affidavit with tbe prosecuting attorney.” Tbe appellant objected to tbe information for tbe reason of such omissions. Section 2457 was enacted by tbe legislative session of 1917 (Laws of 1917, p. 341), and prior to that time §205, cb. 249, Laws of 1909, p. 950, was in effect, which was exactly in tbe same language as § 2457, except that there has been added “ or by filing an affidavit with tbe prosecuting attorney.”

This court in State v. La Bounty, 64 Wash. 415, 116 Pac. 1073, bad occasion to consider tbe exact question now before us, under tbe act of 1909, and Judge Dunbar, in rendering tbe opinion of tbe court, said:

“One of tbe rights of defendant charged with this crime would be to know whether tbe complaint bad been made by tbe husband or wife as prescribed by law. This information be would have a legal right to have before be could be put upon trial. Tbe only way that be could obtain it would be from tbe information or indictment itself. If tbe indictment or information did not disclose this fact, it would be subject to a demurrer as any other indictment would be that did not comply with tbe terms of tbe law upon which it was based. Tbe demurrer would have to be decided upon tbe face of tbe information, and not upon testimony adduced. Hence, we conclude that tbe statute prescribes a rule of law instead of a rule of evidence. ’ ’

This decision would seem to be conclusive of tbe matter before us and to entitle tbe defendant to bis discharge.

The information in the instant case was verified by one of the same name as the person stated in the charging part of the information as being the husband of the woman charged jointly with the defendant with the crime, and some contention is made that this is a sufficient compliance with the statute. We do not so view it. The statute provides that the offended husband must file an affidavit with the prosecuting attorney, and a mere verification of an information is not a compliance with the statutory requirement, nor does this verification meet the rule laid down by Judge Dunbar that the information shall disclose the fact that the complaint has been made as prescribed by law. Section 2051, Rem. Comp. Stat. [P. C. § 9261], relating to verification, is as follows:

“All informations shall be verified by the oath of the prosecuting attorney, complainant, or some other person.”

The verification in the instant case is merely that the subscriber to it has read the information, knows the contents thereof and believes the same to be true. It cannot be held that this is the affidavit contemplated by the statute. The verification, under § 2051, need not be made by the complainant.

Under the authority of the La Bounty case, supra, the judgment is reversed and the defendant discharged.

Main, C. J., concurs.

Bridges, J.

(concurring) — Concurring in the foregoing opinion, I wish to express my views.

Before the prosecuting attorney filed his information against the appellant, the husband of the woman with whom the appellant is alleged to have had the unlawful relations made a written complaint against appellant, charging him with the alleged offense with his wife. This complaint- was duly verified by the husband and filed with a committing magistrate. It was upon this complaint that the information was based. I am satisfied that the making and filing of that complaint was sufficient to comply with that provision of the statute quoted in main opinion to the effect that,

“no prosecution for violation of the provisions of this section shall be commenced except on complaint of the husband or wife made before a committing-magistrate or by filing an affidavit with the prosecuting attorney, nor after one year from the commission of the offense.”

Were it not for the case of State v. La Bounty, cited and quoted in the foregoing- opinion, I should favor an affirmance of the judgment. In that case we held, in substance, that it must be recited in the information that the injured spouse made complaint as required by statute. The information in this case does not contáin this averment. If we had not long- ago held that the information is bad because of failure to make this allegation, I would be of the opinion that such was not required by the statute and was not necessary. But our decision to the contrary has stood for years; it does not affect a right of property but is merely a rule of pleading, and it ought not at this time to be overruled. For these reasons I concur.

Holcomb, J.

(dissenting) — I cannot concur in the foregoing opinion.

The decision in State v. La Bounty, 64 Wash. 415, 116 Pac. 1073, was not good law either, and should be overruled. The opinion in that case contained not a single citation' of authority upon the question. It was there held that it was necessary to allege that the offended spouse complained of the accused in order to properly allege the crime of adultery under the statute.

The statute provides that the complaint may be made by the offended spouse before a committing magistrate, or by filing an affidavit with the prosecuting attorney. The "record in this case shows that the prosecution was commenced by the injured spouse by a complaint made before a committing magistrate, who committed appellant to the superior court for trial upon the accusation. That complied with the statute as to the complaint being made by the injured spouse. It certainly has never been necessary in the prosecution of any criminal charge to allege that proceedings had been had in an inferior tribunal. The supreme court of Minnesota, in passing upon a case under a similar statute constituting adultery on the part of a married woman, the sole dfference between it and our statute, except that the statute there did not provide for a complaint being made before a committing magistrate, held that where a complaint was made before a committing magistrate and the accused bound over for trial to the district court, the case had been properly commenced by the injured spouse. State v. Dlugi, 123 Minn. 392, 143 N. W. 971, decided in 1913.

The supreme court of Iowa decided in 1914 that, where an information charging the defendant with having committed the offense of adultery was signed and sworn to by his wife, the prosecution was commenced on her complaint. State v. Conklin, 164 Iowa 718, 146 N. W. 821.

The information in this case was signed and sworn to by Joe Beten, the injured spouse, which alleged that appellant had committed the offense of adultery on August 11, 1922, and prior thereto, with Mary Beten at the time the lawful wife of Joe Beten, and not the wife of appellant. The facts alleged in the information and the fact that they were sworn to by Joe Beten certainly distinguish, this case from the La Bounty case, supra, in any event.

The judgment should therefore he affirmed.

Mitchell, J., concurs with Holcomb, J.  