State v. Beaman

• Court: Washington Supreme Court
• Writing for the Court: ASKREN, J.
• Citation: State v. Beaman, 143 Wash. 281, 255 P. 91 (Wash. 1927)
• Decision Date: 07 April 1927
• Docket Number: 20388.
• Parties: STATE v. BEAMAN.

255 P. 91

143 Wash. 281

STATE v. BEAMAN.

No. 20388.

Supreme Court of Washington

April 7, 1927

Department 2.

Appeal from Superior Court, Kittitas County; Davidson, Judge.

S. E Beaman was convicted of burglary in the second degree, petit larceny, and malicious destruction of property, and he appeals. Affirmed.

Mackintosh C.J., and French. J., dissenting.

E. K Brown, of Ellensburg, for appellant.

Arthur McGuire, of Ellensburg, for the State.

ASKREN J.

Appellant, Beaman, was tried and convicted on three counts, to wit, burglary in the second degree, petit larceny, and malicious destruction of property. From sentence thereon he appeals. The facts follow:

In March, 1926, appellant was placed in the city jail in Cle Elum on account of drunkenness. His condition at the time was bad; the arresting officer being required to use force in making the arrest. He was placed in a separate cell at about 6:30 p. m. At that time two other prisoners were also confined in the same jail, one Larson and one Little. Shortly before 9 p. m. still another prisoner, named English, was placed in confinement.

About 9 p. m. the officers, investigating, found that the padlock on Beaman's cell had been broken, that a cell in which was kept contraband liquor was broken into, and that some of the liquor had been taken out and a portion of it drunk by the prisoners. Certain water pipes were also broken. Thereupon the prosecutor charged each of the prisoners jointly in an information with the commission of three crimes. The first count charged burglary in the second degree in breaking and entering the part of the building where the liquor was kept; the second count charged petit larceny, based on the taking of the liquor; and the third count charged maliciously breaking and injuring the padlock and water pipes. The jury found Beaman alone guilty on the first count, Beaman and Larson guilty on the second and third counts, and English and Little not guilty on all three counts.

Upon appeal it is urged that the appellant could not have been convicted of more than one of the first two crimes charged because of the idenity of the offenses. This point is not well taken. The rule to be applied is stated by Wharton and cited by us in State v. Dye, 81 Wash. 388, 142 P. 873, as follows:

'Test as to whether two indictments are for the same offense is the fact whether evidence necessary to support the latter indictment would have sustained a conviction under the former indictment. Testimony to sustain the second charge not being admissible to sustain the first charge, there is no former jeopardy.' Wharton, Criminal Law (11th Ed.) p. 528.

The first count charges burglary, the gist of which is the breaking and entering with intent to commit a crime therein. The second count charges petit larceny, the gist of which is the taking of property of a less value then $25.

Turning to the rule, would evidence necessary to support the second indictment or count have sustained a conviction under the first? Manifestly it would not. The gist of each offense is entirely separate. On a charge of larceny the appellant could not be convicted of burglary. Nor does a conviction of burglary ipso facto dispose of the larceny, for a jury might find the facts constituting burglary without finding that there had been any larceny, and the reverse is also true.

The rule is well stated in 16 C.J. p. 277:

'But, although the contrary rule prevails in some jurisdictions, it has been held quite generally that an acquittal or conviction on an indictment for burglary which merely charges a breaking and entering with intent to steal will not bar a subsequent prosecution for the actual theft. Nor will an acquittal or a conviction of the larceny bar a prosecution for the burglary so alleged.'

As to the third count, it should be stated that the padlocks alleged to have been broken were those placed on appellant's cell, and not the one broken in securing the burglarious entrance into the place where the liquor was held. As to that padlock the destruction thereof was in itself the act of breaking which is included in the charge of burglary.

The next error assigned related to the failure of the court to give certain requested instructions relative to the state of mind of the appellant at the time of the commission of the acts charged. It was appellant's defense that he was so intoxicated that he did not know what he was doing and could not form an intent to commit either the crime of burglary or larceny. On this point the court instructed as follows:

19. 'No act committed by a person while in a state of voluntary intoxication shall be deemed less criminal by reason of his condition, but whenever the actual existence of any particular purpose, motive, or intent is a necessary element to constitute a particular species or degree of crime, the fact of his intoxication may be taken into cnsideration in determining such purpose, motive, or intent.'

20. 'In other words, voluntary intoxication furnishes no excuse, justification, or extenuation for a crime committed while under its influence, but if his mental condition at the time of the alleged criminal act is such that he was incapable of having any intent, his act is not a crime at all. If therefore there is any evidence in this case of voluntary intoxication of any defedant, such fact should be taken into consideration, together with all the other facts established by the evidence, to determine the existence or nonexistence of an intent.'

21. 'I further instruct you that the intent with which an act is done need not be proven by direct and positive evidence, but may be determined by the jury from all the evidence, facts, and circumstances in the case, provided that you are convinced thereby beyond a reasonable doubt of the existence of such intent.'

These instructions were not excepted to and therefore became the law of the case. The instructions refused by the court were drawn in varying language, but the burden of each of them was that the jury should determine whether from intoxication the mental faculties of the appellant were so impaired that...