City of Seattle v. Gleiser

• Decision Date: 26 February 1948
• Docket Number: 30317.
• Citation: 189 P.2d 967,29 Wn.2d 869
• Court: Washington Supreme Court
• Parties: CITY OF SEATTLE v. GLEISER.

189 P.2d 967

29 Wn.2d 869

CITY OF SEATTLE v. GLEISER.

No. 30317.

Supreme Court of Washington

February 26, 1948

Department 2

Lester C. Gleiser was convicted of violating ordinance of City of Seattle in that he did willfully and unlawfully aid and abet certain woman to agree to perform an act of prostitution in the City of Seattle, and he appeals.

Affirmed.

Appeal from Superior Court, King County; Robert M. Jones, judge.

Ervin F. Dailey, of Seattle, for appellant.

A. C Van Soelen, Arthur Schramm and Charles L. Conley, all of Seattle, for respondent.

JEFFERS Justice.

Defendant Lester C. Gleiser, was charged with the violation of an ordinance of the city of Seattle, in that he did wilfully and unlawfully aid and abet June Simms to agree to perform an act of prostitution, in the city of Seattle, on or about September 4, 1946. The cause came on for trial Before the court and jury, and on June 18, 1947, the jury returned a verdict of guilty as charged. Defendant duly filed motions in arrest of judgment and for new trial, which motions were by the court denied on June 28, 1947, and on the date last mentioned judgment on the verdict was entered, and defendant was sentenced to serve ninety days in the city jail. Defendant has appealed from the judgment and sentence imposed.

While appellant makes six assignments of error, he argues only the fourth assignment, which states: 'That the trial court erred in refusing to hold the appellant was entrapped and to therefore dismiss the respondent's action.'

The city's evidence in chief consisted of the testimony of J D. Porter, a sergeant in the Seattle police department. Porter had been in the department for eleven years, and at the time of the events hereinafter related, was working with the vice squad. On the evening of September 4, 1946, Porter went to the Seattle Hotel, for the purpose of ascertaining whether or not prostitution was being practiced there. Before he left for the hotel, he and Officer Sylvester recorded on a slip of paper or card, admitted in evidence as exhibit 1, the numbers of a ten dollar bill and two five dollar bills.

Porter registered at the hotel under his own name, but thought he might have given his address as Spokane or Portland. He was assigned to room 335. He went to his room, and about 9 o'clock called for a bellboy. When the boy arrived Porter asked him if he could get him a girl, to which the bellboy replied that he could not, but that if he (Porter) would come back around 11 or 11:30, there would be some one there who could.

Porter then left the hotel, but returned to his room about 11:30 and again called for a bellboy. In answer to this call, appellant Gleiser appeared. Porter then asked Gleiser if he could get him a girl, and after Gleiser had checked Porter's identification he told Porter he could get him a girl, and that the price would be $20 for twenty minutes and $50 for an hour. Porter stated that he could only afford $20, and gave Gleiser the marked money, one ten and two five dollar bills. Gleiser then told Porter they would have to go to another room where the girl was, and Gleiser took him to room 407. When they entered room 407 no one was there, and appellant knocked on the adjoining room 406. The girl later identified as June Simms came to room 407 from room 406, through the connecting door. Porter testified:

'Q. Did the defendant have any conversation with the girl? A. He told her he had already collected the twenty dollars for the trick.

'Q. Where did Gleiser go then? A. He left the room.

'Q. What occurred then? A. The girl then made some such remark--[Objection by Mr. Dailey was sustained.]

'Q. Without repeating any conversation, what did she do? A. She took off her dress which was the only garment she had on.

'Q. What did you do then? A. I placed her under arrest.'

After the girl had dressed, Porter took her downstairs and placed her in charge of another officer. He then got Officer McKay and they went up to room 407. They knocked on the door, which was opened by a girl known to the department as Molly Blahn, alias Peggy Williams. Porter heard some one in room 406, and he stepped out into the hall and saw Gleiser coming out of room 405. He stopped Gleiser and arrested him.

'Q. Do you know whether rooms 405, 406 and 407 were adjoining rooms? A. Yes, at that time they were used as adjoining rooms.'

Porter then took Gleiser into room 407, where the girl was, searched him, and found the two marked five dollar bills in Gleiser's wallet. Gleiser was taken to the police station, where he was again searched, and the other $10 in marked money was found.

On cross-examination Porter stated that he did not know any girl in the hotel; that he did not know the girl Molly Blahn, alias Peggy Williams, and had never seen her Before the night in question, but he knew her police record; that he never at any time asked for liquor.

Appellant took the stand and testified in his own behalf. He stated that he had been married for about twelve years; that he had been employed at the Seattle Hotel approximately fourteen months, and worked from 12 to 8 a. m. as combination bellman and elevator operator. A few minutes after he went on duty the night in question he was called by the clerk and told to go to room 335. Gleiser went to room 335, rapped on the door, and was invited in by Porter, who asked him if he could get him a bottle of whiskey. Gleiser informed Porter they had no whiskey, and as he was leaving the room Porter asked him if June Simms still lived there. Gleiser answered that he did not know, but that he would check at the desk, which he did, and was informed by the clerk that June Simms had room 407. Gleiser went back and told Porter what the clerk had said, and then went on about his business. About fifteen minutes later he got a call from the fourth floor, and when he went up, Porter and 'this so-called June' were waiting to go downstairs.

Appellant stated that he did not know June Simms prior to that time, nor that she lived in the hotel; that he had never seen her prior to that night, and had never seen her since. He further stated he was not searched in the hotel; that he was searched at the police station, but that no money was found no him, other than his own; that he took no money from Porter, and no marked money was found on him; that he had no conversation with Porter relative to getting him a girl or how much it would cost him.

Appellant admitted having been convicted in police court of a similar offense in another case, but stated that the case had been appealed to the superior court.

Joseph H. Bingston, the bellboy who was on duty prior to Gleiser, was called by appellant, and stated that Porter called him and wanted some whiskey; that he told Porter they had no whiskey, but that he could get him some beer; that he went down and got Porter two bottles of beer; that Porter then asked him if he could get him a girl, and he told Porter that he could not, that they had no women there.

Appellant states in his brief: 'The appellant takes the position that the case at bar is clearly one of entrapment.' We understand it is appellant's contention that the evidence shows that Officer Porter solicited appellant to commit the crime of which he was convicted; that this idea originated with Officer Porter, and that the solicitation was for the purpose of inducing appellant to break the law so that the officer could arrest him.

The question of entrapment was raised and discussed in Butts v. United States, 8 Cir., 273 F. 35, 18 A.L.R. 143. In the annotation to the case, authority is cited from practically every state and from the Federal courts. In many of the cases cited it was held that the facts did not show that the inducements relied upon were sufficient to constitute entrapment, and in others that there were sufficient facts to entitle the defendant to an instruction on entrapment. Under a general statement in the annotation, to the effect that it is no defense that a person acting as a decoy furnished an opportunity for the commission of the offense, many cases are cited, and among them we find State v. Littooy, 52 Wash. 87, 100 P. 170, 172, 17 Ann.Cas 292.

The Littooy case seems to be the first one decided by this court in which the question of entrapment is discussed. Defendant Littooy was tried, convicted and sentenced upon an information charging him with the crime of practicing dentistry without a license. The eleventh assignment of error was predicated upon the refusal of the court to give an instruction on entrapment. The opinion states:

'The court might properly have refused this instruction on the ground that there is no evidence in the record to support it. There is no evidence that any inducements were used other than that the witness went to the office of the appellant, had him fill a cavity in his tooth, and paid him for the service. ' Opportunity' and 'inducement' are not equivalent terms.' (Italics ours.)

The cited case refers to and quotes at length from Evanston v. Myers, 172 Ill. 266, 50 N.E. 204, which reversed Evanston v. Meyers, 70 Ill.App. 205. The opinion of the supreme court of Illinois (172 Ill. 266, 50 N.E. 204, 205) refers to the decision of the appellate court as follows: 'The appellate court, in passing upon this case, found that the beer was sold as alleged in the complaint, but held that inasmuch as the city furnished the money, and the purchaser was in its employ to discover violators of the ordinance, the offense was one induced by the city of Evanston, and the defendant was not punishable therefor.'

The opinion continues:

'Under the facts of the case, as we understand them, we cannot concur in this view. The offense, if one was committed, consists in the...