State v. Diamond Ice & Storage Co. , 105 Wash. 122 ( 1919 )

Tolman, J.

On September 20, 1917, the prosecuting attorney of King county filed an information in the superior court for that county, the charging part of which is as follows:

“Said Diamond Ice & Storage Company, Inc., a corporation, and Q. Gr. Peniston, in the county of King, state of Washington, on and from March 31,1917, continuously up to and including July 31, 1917, were engaged in freezing and preserving in ice food fish caught within the waters of the state of Washington, and said Diamond Ice & Storage Company, Inc., a corporation, and Q. G. Peniston, and each of them, upon said 31st day of July, 1917, did wilfully and unlawfully neglect and refuse to make a report to the fish commissioner of the state of Washington for said period between the 31st day of March, 1917, and the 31st day of July, 1917, stating the quantity in pounds of all fish so preserved or frozen by them, as required by law, and said Diamond Ice & Storage Company, Inc., a corporation, and Q. G. Peniston, and each of them, have ever since wilfully and unlawfully failed, neglected and refused to make such report to said fish commissioner as required by law, and said defendants during all of said period, and ever since, have wilfully and unlawfully neglected and refused to remit to said fish commissioner the sum of one dollar ($1) per gross ton for each ton, or fraction thereof, of food fish so preserved and frozen by them between the 31st day of March, 1917, and the 31st day of July, 1917, as required by law.”

There was a dismissal as to Q. G. Peniston, and the cause proceeded to trial against the Diamond Ice & Storage Company before the court, a jury having been waived, resulting in a judgment of guilty and the imposition of a fine, from which an appeal was duly taken.

The testimony on behalf of the state tended to show that the appellant was conducting a general warehouse and cold storage business in Seattle, and as a part thereof had been engaged in freezing fish during the period of time mentioned in the information, and that it did not, on July 31, 1917, or subsequently, file any report or pay any tonnage tax on fisb frozen by it during sucb time. In tbe attempt to show that some of tbe fisb so frozen were caugbt witbin tbe waters of tbe state, as charged in tbe information, there was introduced tbe testimony of a witness engaged in tbe wholesale fisb business, whose company operated a boat in tbe waters of Puget Sound for tbe purpose of buying salmon trout, and it appears therefrom that tbe boat made 24-hour trips from Seattle for tbe purpose of buying and bringing in tbe fisb. Tbe witness said:

“A. Tbe boat buys tbe salmon. It goes around amongst all tbe boats and buys them. Q. You don’t know where tbe fisb were caugbt that you bought? A. No, I don’t know where they were caugbt, but—Q. I object unless you know. Mr. Helsell: Let him answer. He says be knows where they were bought. Q. (Mr. Helsell) Who sells them? A. Tbe Greek fishermen go out and catch them in nets at night and when they take tbe nets in in tbe morning tbe buyer goes around amongst them and picks them up and brings them in. Q. You don’t know where any of them were caugbt? You were not present? A. No, sir.”

Tbe witness further testified that, on May 12, 1917, of tbe fisb brought in by this boat, 2,645 pounds of salmon trout were placed with appellant for freezing.

Again, another witness, also a wholesale fisb dealer, testified that, on July 28, be placed with appellant for freezing 145 pounds of sole and thirty pounds of perch which were shipped to him from Whidbey Island and Grays Harbor, respectively, but tbe witness did not pretend to know where, or by whom, any sucb fisb were caugbt, saying that be bought from fishermen and fisb brokers wherever be could get fisb.

Mr. Peniston, appellant’s' manager, was called as a witness for tbe state, and testified that bis company froze fish for any one who sent them to the plant for that purpose, that the fish go through four or five hands before they come to the plant, and the first any one connected with appellant’s business sees or knows of them is when the fish are dumped off a wagon through a chute and into the appellant’s basement, saying in answer to a question by the prosecutor:

“A. They asked me to make a report of the fish caught within the state of Washington waters, and on a certain side of the Columbia river and so on. But I couldn’t tell. The first time I see the stuff, it is dumped off the wagons through the chute into our basement. The fishermen receive the fish from all different points and they pack it in ice and use out of that to sell; and when they get an accumulation over and above what their sales will be, they load it in a wagon and send it to storage. Some of that might come from Oregon, some of it might come from British Columbia, some of it might come from Alaska. But really I don’t believe the wholesale dealer in fish could swear where any particular fish he received comes from.”

This testimony, which was all the proof upon this particular point, clearly falls far short of proving with the certainty required under a penal statute that appellant was engaged in freezing and preserving in ice food fish caught within the waters of the state of Washington, as charged in the information.

But it is argued that, if the evidence is insufficient to prove that appellant had in fact frozen fish caught within the waters of the state, yet nevertheless appellant is guilty under the statute, because it is contended that the statute requires the report and the payment of the tonnage tax from all those engaged in curing and freezing fish, without regard to where the fish were caught. Assuming, without deciding, that such is the intention of the statute, is the state not limited in this case to the charge made in. the information? As we understand the rules of pleading in criminal cases, the state is bound by its allegations in the information, and having charged in effect that appellant failed to report and pay a tonnage tax upon food fish frozen by it caught within the waters of this state, which no doubt charges an offense under the statute, it cannot be permitted in support of that charge to prove that appellant failed to report and pay a tonnage tax upon food fish frozen by it which were caught in the waters of Alaska, British Columbia, or ' elsewhere, even though that also be an offense under the statute. We think, under our statute, Bern. Code, § 2057, requiring the information to be direct and certain, that the state is bound by the charge as made, and must prove the offense to have been committed as there alleged, in order to sustain a conviction. 1 Wharton, Criminal Evidence, § 92; 13 Ency. Evidence, 640; State v. Gifford, 19 Wash. 464, 53 Pac. 709; State v. Morgan, 21 Wash. 355, 58 Pac. 215.

Beversed, with directions to dismiss.

Main, C. J., and Mitchell, J., concur.

Chadwick and Mackintosh, JJ., concur in the result.