City of Bremerton v. Smith, 30474.

• Decision Date: 05 November 1948
• Docket Number: 30474.
• Parties: CITY OF BREMERTON v. SMITH et al.
• Court: Washington Supreme Court

199 P.2d 95

31 Wn.2d 788

CITY OF BREMERTON v. SMITH et al.

No. 30474.

Supreme Court of Washington, En Banc.

November 5, 1948

Clyde O. Smith, Otie E. Smith, Herschil L. Blackwell, and Miltred Blackwell were convicted of mutilating and injuring certain slot machines and pilfering money therefrom in violation of an ordinance of the City of Bremerton, and they appeal.

Affirmed.

SIMPSON MILLARD, ROBINSON and SCHWELLENBACH, JJ., dissenting.

Appeal from Superior Court, Kitsap County; Frank W. Ryan, Judge.

Frederick B. Cohen and Jack Rowles, both of Bremerton, for appellants.

Oluf Johnsen and Merrill Wallace, both of Bremerton, for respondent.

Richard S. Munter and H. E. T. Herman, both of Spokane, and Cornelius C. Chavelle of Seattle, amici curiae.

MALLERY Chief Justice.

From a conviction in the Municipal Police court of Bremerton, the defendants appealed to the Superior Court of Kitsap County. Upon a trial de novo they were convicted on counts 1 and 4 of an amended complaint charging (1) that they mutilated and injured slot machines belonging to the Moose Lodge and; (2) that they took, pilfered and appropriated to their own use money of the United States of America taken from the slot machines belonging to the Moose Lodge.

The appellants assign as error the action of the trial court in (a) overruling the demurrer to an amended complaint; (b) denying motion for directed verdict and motion to dismiss (c) denying motion made in arrest of judgment; (d) overruling motion to suppress evidence; (e) admitting exhibits A, B, C D, and F; (f) refusing to admit certain testimony; (g) in giving instructions Nos. 4, 6, and 15; and (h) refusing to give two instructions proposed by defendants.

After appellants appealed to the superior court, they demurred to the complaint upon which they were tried in the municipal court. The demurrer was sustained, whereupon the city attorney filed with the clerk of the superior court an amended complaint charging appellants with the commission of misdemeanors in six counts. In the first three counts of the amended complaint, appellants were charged with mutilating and injuring slot machines belonging to the Moose Lodge, the Eagles Lodge, and the Bremerton City Club in violation of ordinance No. 325, section 40, of the city of Bremerton. In the last three counts appellants were charged with taking, pilfering, and appropriating to their own use, money of the United States belonging to the above named organizations, in violation of section 8 of the same ordinance. A demurrer to the amended complaint, based upon statutory grounds, was overruled.

The first argument advanced by appellants is that, the city attorney could not, upon appeal to the superior court, amend his complaint by adding new counts. We are unable to find any error in the court's allowance of the motion to amend the complaint. Appeals from municipal or justice courts are tried de novo in the superior court. Rule 12(2), Rules of Practice, 18 Wash.2d 40-a, Rem.Supp.1945, § 308-12, allows under certain conditions the amendment of an information. There is no good reason to deny the right to amend the complaint such as was presented to the court in this case. True, the rule mentions only informations. The evident purpose of the rule, however, was to allow amendments to all charges in a criminal case.

Appellants contend that slot machines are lotteries, are not property, and that it is not a criminal act to mutilate, deface, or injure them.

Though a possessor of a thing of value be unable to make good in court a legal right to possess it, still, one with no claim of right may not mutilate it or by stealth, trick, force or threats take it from him. To hold otherwise would frustrate that basic purpose of the law which is to bring peace and security to society. It should not be decreed that such a possessor be relegated and invited to the use of force and violence to maintain his possession because of immunity granted to outlawry. No variety of larceny can be made consistent with the interests of an orderly society. See State v. Schoonover, 122 Wash. 562, 211 P. 756 and State v. Donovan, 108 Wash. 276, 183 P. 127.

The trial developed the facts that the Moose Lodge, the Eagles' Lodge and the Bremerton City Club, maintained slot machines in their club rooms. The appellants made the rounds of these clubs. Upon entering the club rooms the procedure followed was to buy script books for drinks and secure silver coins ostensibly with the purpose of playing the slot machines. Appellant Smith acted as a look-out while the others played. Appellant Clyde Smith told officer Carey that it took about five seconds to drill holes in the slot machines and that they 'beat' the machines in the club rooms mentioned. The jack pots on some of the slot machines ran as high as $50. The exact method of manipulating the slot machines after the holes were bored was not explained in the record. Smith explained to the officer that he and his wife took one half of the winnings and Herschil and Miltred Blackwell took the other half, after all expenses were deducted.

After the appellants left the Moose club room, the attendant noticed metal shavings in the slot machine trays and thereupon discovered that small holes had been bored in the machines just above the jack pot receptacles. Information was then given to the police which led up to the arrest here in question.

The most difficult question in the case hinges up the legality of the arrest of the defendants. They were arrested without a warrant and articles seized from them were introduced in evidence as exhibits in the case. If the arrest was illegal, then the articles revealed in the search incident to it should have been suppressed. On the other hand, if the arrest was legal then the exhibits were properly admitted. The offense was not committed in the presence of the arresting officer and hence to be valid without a warrant it must have been for a felony and upon sufficient information of a competent nature given to the officer to fall under the rule that he must have had probable cause to believe that a felony had been committed.

The question presented to us is not one of law, which is reasonably clear, but one of fact. That is: Do the facts in this case bring it under the rule permitting an arrest for a felony not committed in the presence of an arresting officer? The information possessed by the arresting officer may be summarized as follows: He recognized Mrs. Blackwell as one of the persons described in a circular received from the Aberdeen police department in which she and the other defendants were described as expert pinball machine defrauders; she had been pointed out to him as one of the individuals who had taken 'a large sum of money' from the slot machines located in the club rooms of the Moose Lodge at Bremerton; he had found on the front seat of the car in which she had been riding a canvas bag containing a large quantity of silver coins (subsequently ascertained to amount to more than $200), a hand drill, and two shims, or 'feelers', with hooks on the end. These articles were in plain view of any one looking into the car. The weight of the bag containing more than $200 in silver coins apprised the arresting officer that its contents amounted to more than $25. (There was $266.55 in the bag when it was introduced in evidence, but the testimony showed that $40 or $50 of that amount had been taken from Mrs. Blackwell's purse and placed in the bag after the arrest, so that the money in the bag, when taken from the front seat of the car, must have amounted to more than $200.) The examination of Mrs. Blackwell's purse followed the arrest and, in addition to the $40 or $50 in silver above referred to, the following articles were found therein: colored crayons, matches, a pen knife, and drills. These articles were significant because of the testimony that it was customary, after holes had been drilled in a solt machine, to insert matches in the holes and to color the ends of the matches with crayon of the same color as the machine.

We conclude that these facts bring the defendants within the rule and that the arrest was lawful, that the search was incident thereto, and that therefore the exhibits were admissible.

The fact that the defendants were ultimately charged with and convicted of pilfering instead of grand larceny is, of course, entirely beside the point; the material issue is whether the arresting officer had probable cause to believe, at the time the arrest was made, that the defendants were guilty of a felony.

The exercise of discretion on the part of the city attorney in filing a complaint in the municipal police court which has no jurisdiction over felonies is without significance since it does not relate back and convert the arrest for a felony into one for a misdemeanor.

Appellants urge that the trial court erred in refusing them the privilege of demonstrating to the jury the manner in which slot machines could be made to pay without the use of any method other than the manipulation of the lever by which the machines are operated.

'The admissibility of experiments, illustrations, and other demonstrative evidence Before a jury, throwing light upon the manner in which a crime was committed, rests in the discretion of the trial court.' State v. Richardson, 197 Wash. 157, 84 P.2d 699, 705.

We are of the opinion that the trial court properly exercised its discretion in refusing a demonstration. The demonstration, if made, could not have tended to in any manner disprove the evidence introduced by the city.

Complaint is made about instructions given. Those instructions are not included in appellants' brief and cannot be considered.

Appellants also predicate error upon the...