Cite as State v. Tully, 198 Wash. 605 (1939)

                         STATE v. TULLY.

                           No. 27394. 

                  Supreme Court of Washington. 

                         April 20, 1939.

     Department 1.

     Appeal from Superior Court, King County; Clay Allen, Judge.

     Owen Tully was convicted of riding in an automobile with
knowledge that it had been stolen and of having unlawful possession
of a firearm, and he appeals. Affirmed.

     Andrew L. Ulvestad, of Seattle, for appellant.

     B. Gray Warner and John H. Neergaard, both of Seattle, for
respondent.

     MAIN, Justice.

     John Tully was charged by information with the crime of
stealing an automobile. In the same information, Owen Tully was
charged as an aider and abettor. Both pleaded not guilty, and, when
the case was called for trial, John Tully entered a plea of guilty.
Thereupon, the case was continued as to Owen, and an amended
information was filed, which contained four counts. In the first,
the defendant was charged with the theft of an automobile; in the
second, with riding in an automobile with knowledge that the same
had been stolen; in the third, with having in his possession a
firearm, "to-wit: a revolver pistol," which possession was alleged
to be unlawful because the defendant had previously been convicted
of "a crime of violence"; and in the fourth, with unlawfully having
upon his person a pistol when he was not in "his fixed place of
abode or fixed place of business." To each of these counts, the
defendant pleaded not guilty. At the conclusion of the state's
evidence, the court dismissed Count I, which contained the theft
charge. As to the other three, the defendant was found guilty by
the jury, and, from the judgment and sentence, appealed.

     The primary question is whether sections 4 and 5 of the
"Uniform Firearms Act" (Chapter 172, p. 599, of the Laws of 1935)
are violative of the constitutional of this state or the fourteenth
Amendment to the Federal constitution, U.S.C.A. Section 4 provides
that no person who has been convicted of "a crime of violence"
shall own a pistol or have one under his control. Section 5
provides that no person shall carry a pistol in any vehicle or
conceal it about his person, "except in his place of abode or fixed
place of business, without a license therefor as hereinafter
provided."

     In support of his contention that the two sections of the
statute mentioned are violative of the constitution of this state,
attention is called (a) to Article 1, section 12, which provides
that no law shall be passed granting to any citizen or class of
citizens, other than municipal, privileges or immunities which,
upon the same terms, shall not equally belong to all citizens or
corporations; (b) to Article 1 section 23, which provides that no
bill of attainder or ex-post facto law shall be passed by the
legislature; and (c) to Article 1, section 24, which provides that
the right of the individual citizen to bear arms in defense of
himself or the state shall not be impaired.  No authorities are
cited in support of the contention that either one or both of the
sections of the statute mentioned are violative of either one or
more of the constitutional provisions mentioned, and, so far as we
are informed, we know of no authorities supporting any of the
contentions. The authorities, so far as they have spoken on the
questions, either by analogy or directly, are all to the contrary.
State v. Le Pitre, 54 Wash. 166, 103 P. 27, 18 Ann.Cas. 922; In re
Rameriz, 193 Cal. 633, 226 P. 914, 34 A. L.R. 51; People v.
McCloskey, 76 Cal.App. 227, 244 P. 930; Ex Parte Thomas, 21 Ok.
770, 97 P. 260, 20 L.R.A.,N.S., 1007, 17 Ann.Cas. 566. Other cases
might be cited to the same effect, but it does not seem necessary
that they be assembled here.

     In the information, it will be observed that Counts III and
IV, which covered the matter of the possession of firearms, were
joined with Counts I and II, which covered the matter of the theft
of the automobile and aiding and abetting in its taking. As to
Count I, which was dismissed at the conclusion of the state's case,
no comment need be made. The question is whether Counts III and IV
could be joined in the same information with Count II.

     Rem.Rev.Stat. section 2059, provides that, when there are
several charges against any person or persons for the same act or
transaction, or for two or more acts or transactions connected
together, they may be joined in one information in separate counts,
Under this section of the statute, the court did not err in
permitting all three counts in the information to stand.

     Complaint is made of the opening statement of the prosecuting
officer to the jury wherein he said that the appellant had
previously been convicted of a crime of violence. In order to prove
a crime under section 4 of the statute, above mentioned; it was
necessary to prove that he had been previously convicted of a crime
of violence. To charge a crime under that statute, it was necessary
to so allege in the particular count in the information. It being
a thing which was necessary to be alleged, and proved, there could
be no error in the statement to the jury of what the evidence would
show.

     It is further contended that the evidence was not sufficient
to take the case to the jury on Count II, in which was the charge
of riding in an automobile with knowledge that it had been stolen.
Rem.Rev.Stat. section 2601--1 provides that every person who shall,
without permission of the owner or persons entitled to the
possession thereof, intentionally take or drive away any automobile
or motor vehicle, the property of another, shall be deemed guilty
of a felony, and every person "voluntarily riding in or upon said
automobile or motor vehicle with knowledge of the fact that the
same was unlawfully taken shall be equally guilty" with the person
taking or driving the automobile or motor vehicle and shall be
deemed guilty of a felony. To sustain a conviction under this
statute, it is sufficient if the circumstances are such as to cause
the accused to believe "at any time he was riding in the stolen
automobile, that the said automobile was stolen." State v. Hill,
131 Wash. 273, 251 P. 280.

     Without reviewing the evidence offered in support of the
charge in Count II, it may be said that, after reading and
considering that evidence as it appears in the statement of facts,
we do not doubt but that the facts and circumstances supported by
the evidence were sufficient to take the question to the jury.

     The appellant makes some other contentions, but we think these
are covered by what has herein been said.

     The judgment will be affirmed.

     BLAKE, C. J., and STEINERT, ROBINSON, and JEFFERS, JJ.,
concur.