[No. 30999. Department One. Supreme Court December 22, 1949.]
THE STATE OF WASHINGTON, Respondent, v. EUGENE
WILLIAMS, Appellant.«1»
[1] CRIMINAL LAW - APPEAL - PRESERVATION OF GROUNDS - SUFFICIENCY OF INFORMATION. The sufficiency of an information cannot be raised for the first time in the supreme court.
[2] APPEAL AND ERROR - STATEMENT OF FACTS - TIME FOR FILING. A statement of facts which was not served and filed within the time prescribed in Rule of Supreme Court 9, will be stricken.
Appeal from a judgment of the superior court for Spokane county, Kelly, J., entered March 4, 1949, upon a plea of guilty to a charge of family desertion. Affirmed.
Lowell B. Vail, for appellant.
Leslie M. Carroll and Dennis H. Pottratz, for respondent.
DONWORTH, J. -
The defendant was charged in the superior court with the crime of family desertion under the provisions of Rem. Supp. 1943, § 6908 [P.P.C. § 115-1]. The material part of the information alleged:
"That the said defendant, Eugene Williams, in the County of Spokane, State of Washington, on or about the 18th day of January, 1949, and for months prior thereto, then and there being, did then and there willfully, unlawfully and feloniously, having four children under the age of sixteen years dependent upon him for care, education and support, desert such children and omit, and has since omitted to furnish necessary food, clothing, shelter and medical attention for said children."
Upon his arraignment the defendant, being represented by counsel, pleaded guilty to the information. At the request of his attorney, he was sworn and testified fully asto the circumstances regarding his failure to support his four children.
The superior court thereupon found the defendant guilty of the crime of family desertion and sentenced him to confinement in the state penitentiary for a term of not more
«1» Reported in 212 P. (2d) 777.
324 STATE v. WILLIAMS. [35 Wn. (2d)
than twenty years. From this sentence, the defendant has appealed to this court.
Appellant's two assignments of error are (1) that the information fails to state sufficient facts to constitute a crime, and (2) that the judgment and sentence is erroneous and void for that reason. The two assignments involve the same legal questions.
[1] These assignments may not be considered by us because no challenge to the sufficiency of the information was interposed in the superior court. Under our decisions, the sufficiency of the information cannot be raised for the first time in this court. This rule is clearly stated in State v. Piper, 194 Wash. 194, 77 P. (2d) 779, in the following language:
"Two errors are assigned as grounds for reversal. Under the first assignment, the appellant challenges the sufficiency of the information.
"The record before us does not disclose that the appellant, either by demurrer or motion in arrest of judgment, attacked the information in the court below. Under our uniform holding, the sufficiency of the information cannot be raised for the first time in this court. See State v. Beebe, 185 Wash. 655, 56 P. (2d) 682, and cases there cited."
See, also, State v. Taylor, 196 Wash. 37, 81 P. (2d) 853, and State v. Karsunky, 197 Wash. 87, 84 P. (2d) 390.
Appellant relies on In re Brandon v. Webb, 23 Wn. (2d)155, 160 P. (2d) 529, as supporting his position. However, this case holds that a plea of guilty to second degree murder waives the right to be tried by a jury. It does not bear upon our problem here.
[2] In his reply brief appellant moves that the statement of facts be stricken because it was not served and filed within the time prescribed in Rule of Supreme Court 9, 18 Wn. (2d) 9-a. This motion must be granted, but, for the reason above stated, we cannot consider the statement of facts in any event, since the errors assigned by appellant are not properly before us.
There being no error in the record which is reviewable by
Dec. 1949] IN RE O'NEIL'S ESTATE. 325
this court, the judgment and sentence of the superior court must stand affirmed.
SIMPSON, C. J., BEALS, SCHWELLENBACH, and GRADY, JJ., concur.