State v. Austin, 36031
Decision Date | 12 July 1962 |
Docket Number | No. 36031,36031 |
Citation | 373 P.2d 137,60 Wn.2d 227 |
Court | Washington Supreme Court |
Parties | The STATE of Washington, Respondent, v. Jimmy Sterling AUSTIN, Appellant. |
Donald D. Haley, Seattle, for appellant.
Charles O. Carroll, Pros. Atty., Robert E. Dixon, Deputy Pros. Atty., Seattle, for respondent.
This appeal results from a judgment of conviction of the crime of robbery entered upon a jury verdict of guilty.
The accounts of the events giving rise to the charge of robbery are in sharp dispute according to the testimony of the defendant (appellant) and the testimony of George Day, the victim of the alleged robbery.
The defendant's version of the events is as follows: On November 19, 1960, at approximately 10 a. m., he met George Day, who he then knew only by the name of 'Pops,' at a drugstore in Seattle. A bottle of wine was purchased with the defendant's money and the two commenced drinking together. Following that, the two went from tavern to tavern drinking beer and wine, purchased mainly with the defendant's money. The defendant tertified that Day promised to pay him (the defendant) for the drinks later. About 7 p. m., the defendant and Day separated and did not meet again until 11 p. m. that same night. The defendant testified that he was standing on the corner of 1st Avenue and Washington Street when he noticed George Day walk out from a nearby hotel. The defendant approached Day and asked him to buy drinks. Day asserted that he did not know the defendant and would not buy any drinks. The defendant then asked Day to pay him the money he owed him for the drinks previously purchased by the defendant. Day said he did not owe the defendant any money, and as he was winding his wristwatch, the defendant grabbed his arm and 'just pulled his watch off;' Day then remarked, The two scuffled and the defendant pushed Day to the ground. About that time, the defendant noticed a police car approaching. He fled to a nearby hotel, where he was apprehended moments later by the policemen who followed him there.
George Day testified as follows: He did not know the defendant and had never seen him before the night of November 19, 1960. He denied having spent the day drinking with the defendant. He went out of his hotel room to buy a newspaper at 11:30 p. m., when the defendant approached and struck him, causing him to fall to the ground. The defendant then pulled the wristwatch from his arm and also took change (United States coins) and keys from his pocket. He could not state the exact amount of money that was taken. The defendant fled when the police car approached.
The two policemen who apprehended the defendant testified as follows: As they were driving in a police car on 1st Avenue approaching Washington Street, they noticed the defendant strike George Day and knock him down. Coming closer to the scene, they heard coins hitting the street. When the defendant fled, they followed him to a hotel a short distance away and apprehended him in the restroom on the second floor. They searched the defendant and removed 66 cents and two keys attached to a shoestring from his pocket. On the floor of the hallway in the hotel, they found George Day's wristwatch. Upon interrogating the defendant at that time, the defendant stated that he took Day's property because he did not have any money and he was hungry.
The written statement, signed by the defendant, which was admitted at the trial as state's exhibit No. 1, states as follows:
'While I was in the toilet I was approached by Police Officers & taken into custody.
'The above is a true & voluntary statement, read by me & taken without fear of promise.'
The defendant admitted signing the statement voluntarily but denied reading the statement carefully before signing it and denied making some of the admissions as they appear in the written statement.
The defendant's first assignment of error is that the trial court erred in admitting in evidence state's exhibit No. 4, which consisted of the 66 cents found on the defendant's person when he was apprehended by the policemen. It is contended that the coins found in the defendant's possession were not identified as the coins Day claimed to have had taken from him by the defendant; and the mere possession of the coins cannot sustain a reasonable inference that they were taken by the defendant from Day.
This contention does not find support in the record. The circumstances of finding coins in the defendant's possession soon after he fled from the altercation with Day and the policeman's testimony that the defendant stated to him that he took Day's property because he was hungry and had no money raises the reasonable inference that the money found was the same money taken. Therefore, state's exhibit No. 4 was admissible. See State v. Barry, 43 Wash.2d 807, 264 P.2d 233 (1953), and cases cited therein; 1 Wigmore, Evidence (3d ed.) 601, § 154.
The defendant contends that the trial court erred in giving instruction No. 8, which related to the confession. It is argued that state's...
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