Eberhart v. Murphy

• Decision Date: 15 December 1920
• Docket Number: 15578 1/2.
• Citation: 194 P. 415,113 Wash. 449
• Parties: EBERHART v. MURPHY et al.
• Court: Washington Supreme Court

194 P. 415

113 Wash. 449

EBERHART v. MURPHY et al.

No. 15578 1/2.

Supreme Court of Washington, En Banc.

December 15, 1920

Appeal from Superior Court, Yakima County; Harcourt M. Taylor Judge.

On rehearing. Former opinion corrected, and judgment appealed from reversed, and cause remanded for further proceedings.

For former opinion, see 188 P. 17.

Holcomb C.J., dissenting in part.

Williamson & Luhman, of North Yakima, for appellants.

Grady &amp Shumate, of Yakima, for respondent.

TOLMAN J.

This case was heretofore heard and decided by a department of this court, and the majority and dissenting opinions of the department will be found in 188 P. 17, to which reference is made for a statement of the facts and issues. A rehearing having been granted, a majority of the court sitting en banc is of the opinion that neither the majority not the minority of the department is wholly right; hence it is necessary to state briefly the results at which we have now arrived.

It is fundamental that a peace officer may lawfully arrest without a warrant a person whom he has a reasonable or probable cause to believe has committed a felony, and----

'the question of probable cause, or reasonable grounds for suspicion in making the arrest, is one of law, unless the evidence out of which it arises is conflicting, in which event it is the duty of the court to instruct the jury what facts, if established, will constitute probable cause, and to submit to them only the question as to the existence of such facts.' 2. R. C. L. 451.

Murphy's first knowledge of the subject-matter came to him through the presentation to him of a letter from Prosecutor Brown of Whatcom county, which reads:

'W. P. Brown, Prosecuting Attorney.

Telephone 205.

'Prosecuting Attorney, Whatcom County.

'Bellingham, Washington, June 9, 1917.

'W. P. Murphy, Esq., Sheriff Yakima County, North Yakima, Washington--Dear Sir: This will introduce Mr. Frank Leighton, who has been in this vicinity for some time representing Delco-Light Products.

'Mr. Leighton has had some business relations with Harry J. Eberhart, and I am of the opinion that as a result of the representations and pretenses made by Mr. Eberhart that he is guilty of the crime of grand larceny. However, it is not the desire of any one concerned to cause a prosecution of Mr. Eberhart, which would result in expense to the taxpayers, if it is possible to avoid such prosecution.

'I have suggested to Mr. Leighton that he go to North Yakima and see Mr. Eberhart, and endeavor to arrange with him for an immediate settlement of the matter in issue, and in the event of his inability to settle the matter satisfactorily, that he request your office to cause the arrest of Mr. Eberhart and wire me over your signature to that effect, whereupon I will at once file an information and place a warrant in the hands of the sheriff with instructions to go to Yakima.

'Will you please, if Mr. Leighton desires, have some one accompany him when he goes to call upon Mr. Eberhart, and remain in the neighborhood so that if it is necessary to arrest Eberhart there will be no chance of his getting away?

'If the suggestions herein made are deemed impracticable after a conference with Mr. Leighton, will you please take any necessary steps to accomplish the object herein intended.

'Yours truly,

'WB-MB

W. P. Brown.'

It will be observed that this letter clearly indicates that the writer was the prosecuting attorney of Whatcom county, and it is not denied that Murphy knew him to be such; that as such prosecutor he had made so much of an investigation of the purported facts as he deemed necessary and proper, and the statement is made clearly and without qualification that in the opinion of the writer Mr. Eberhart was guilty of the crime of grand larceny. Nothing thereafter contained in the letter in any way tends to weaken or cast doubt upon that statement, and even though, as contended, Murphy may have gathered from the letter that the prosecutor was more concerned with the collection of something supposed to be due Leighton than with the enforcement of the law, that was a matter which did not concern him, and he could know nothing of the facts, if any there were, which might tend to justify such a course. In view of the sheriff's duty to execute processes from any county of the state, the fact that the prosecutor is the legal adviser of the sheriff of his county must carry more than ordinary weight with the sheriff of any other county, and the unequivocal statement in the letter that in the opinion of the...