State v. Andrews

• Decision Date: 25 November 1912
• Citation: 71 Wash. 181,127 P. 1102
• Court: Washington Supreme Court
• Parties: STATE v. ANDREWS.

127 P. 1102

71 Wash. 181

STATE v. ANDREWS.

Supreme Court of Washington

November 25, 1912

Department 1. Appeal from Superior Court, King County; Wilson R. Gay Judge.

E. E Andrews and another were convicted of having in their possession a forged instrument with intent to utter, and the defendant named appeals. Remanded, with directions.

Sidney J. Williams and Alfred H. Lundin, both of Seattle, for appellant.

John F Murphy, Crawford E. White, and Reah M. Whitehead, all of Seattle, for the State.

GOSE J.

The defendant and one Kastriner were jointly tried and convicted on a charge of knowingly having in their possession a forged instrument with an intent to utter it. The defendant has appealed from the judgment entered upon the verdict.

Three errors are assigned: (1) Insufficiency of the evidence to support the verdict; (2) error in the instructions, and (3) error in the sentence.

The instrument which forms the basis of the charge is as follows:

Seattle, Wash., 2/4/12. 190 No. 18.

The State Bank of Seattle.

Pay to the order of Henry B. Shaw, $24.80

Twenty four and 80/100 dollars.

Not over twenty-five dollars $25$.

Seattle Cornice Works.

W. M. Bryant.

Two witnesses, Speight and Yank, jailers at the King county jail, testified, in substance, that Kastriner called at the jail on the date charged in the information, at about the hour of 4 o'clock in the afternoon, and left a library book inclosed in a paper, with directions to hand it to appellant; that the book was opened and found to contain six blank checks on the State Bank of Seattle; that the book with the checks was rewrapped and handed to the appellant in his cell; that Kastriner returned about an hour later and requested permission to see the appellant; that he and the appellant were permitted to talk privately in the jail for about 15 minutes, when the witness Beebe, a deputy sheriff, searched Kastriner and found in his inside coat pocket the check in question, and four other checks, drawn on the State Bank of Seattle and stamped and signed in the same manner; that a sixth check, partially filled out, was found on appellant's person; and that a stamp pad was found in his cell. The witness Beebe testified that he took a position without the jail, where he could observe the appellant and Kastriner; that he saw the former take some papers from his pocket that looked like checks and hand them to the latter, who placed them in his inside coat pocket, and took a checkbook out of his pocket, and handed it to the appellant, who put it in his pocket; that when Kastriner was searched the five drawn checks were the only papers found on his person. These witnesses further testified that, after making some denials, both the appellant and Kastriner admitted that the former had given the five drawn checks to the latter, and that the appellant said he had destroyed the stamp or stencil which he had used in signing the checks.

The argument is that the check was taken from Kastriner, and that there is no evidence that it was in 'their possession'; that is, the possession of both defendants, as charged in the information. It is true that the appellant and Kastriner did not both have the actual physical possession of the check at the same time. There is, however, abundant evidence that the two were acting in concert, with a common criminal design. The declarations, therefore, of one are admissible against the other, and the possession of the one was the possession of both. Where two or more persons conspire to commit a criminal act, the acts and declarations of each in furtherance of the common design are the acts and declarations of all. State v. Baker, 125 P. 1016; State v. Williams, 62 Wash. 286, 113 P. 780; State v. Dilley, 44 Wash. 207, 87 P. 133; State v. McCann, 16 Wash. 249, 47 P. 443, 49 P. 216.

There were no exceptions to the instructions. In the absence of exceptions, we have uniformly held that the instructions will not be reviewed....