State v. Bestolas

• Decision Date: 10 January 1930
• Docket Number: 22036.
• Citation: 155 Wash. 212,283 P. 687
• Parties: STATE v. BESTOLAS et al.
• Court: Washington Supreme Court

283 P. 687

155 Wash. 212

STATE v. BESTOLAS et al.

No. 22036.

Supreme Court of Washington

January 10, 1930

Department 1.

Appeal from Superior Court, Pierce County; E. D. Hodge, Judge.

John Bestolas and Alfred Brewer were convicted of sodomy, and they appeal. Reversed as to Brewer, and affirmed as to Bestolas.

John Burton Keener, of Tacoma, for appellants.

Bertil E. Johnson and Byron D. Scott, both of Tacoma, for the State.

BEALS J.

The defendants in this action were jointly charged with the crime of sodomy. The information contains two counts. In the first count the defendant Brewer is charged with having carnal knowledge of the defendant Bestolas, and the defendant Bestolas is charged with having voluntarily submitted thereto. By the second count the defendant Bestolas is charged with having carnal knowledge of the defendant Brewer and the defendant Brewer is charged with having voluntarily submitted thereto. The defendants having pleaded not guilty upon their trial the jury found defendant Brewer guilty as charged in count 1, and defendant Bestolas guilty as charged in count 2. The defendant's motion for a new trial having been overruled, judgment was entered upon the verdict, and each of the defendants sentenced to a term in the state penitentiary, from which judgment and sentence they appeal.

By the verdicts the jury acquitted defendant Brewer of the charge of voluntary submission as contained in count 2, and acquitted the defendant Bestolas of voluntary submission as charged in count 1.

Appellants assign error upon the ruling of the trial court in denying their motion for a new trial, their motion having been based upon the ground that the verdict is contrary to the law and the evidence.

Several watchmen in the employ of the Northern Pacific Railway Company in the course of their duties on the evening of February 18, 1929, arrested the defendants in the Northern Pacific Railway yards in the city of Tacoma. These witnesses and a police officer of the city of Tacoma testified that in response to questions propounded separately to the defendants, the defendants on the night of their arrest each admitted having committed upon his codefendant the offense with which he now stands charged. Upon the trial each of the defendants repudiated these statements or confessions, strenuously denied his guilt, and contended that any statements that he had made tending to prove that he had committed the offense for which he was tried were made under coercion in fear of bodily harm, and were, in fact, untrue.

A careful study of the record convinces us that as to the defendant Bestolas there is sufficient competent testimony in the record to establish the corpus delicti, and to support the verdict of guilty returned against him.

This court has several times held that a confession of the defendant, or admissions made by him, when coupled with other evidence either direct, or circumstantial, constitute competent testimony to be considered by the jury in determining his guilt or innocence. State v. Scott, 86 Wash. 296, 150 P. 423, L. R. A. 1916B, 844; State v Gray, 98 Wash. 279, 167 P. 951; State v. Spillman, 110 Wash. 662, 188 P. 915; State v. Wynn, 125 Wash. 398, 216 P. 872.

A more difficult question is presented by the appeal of the defendant Brewer. While the record contains sufficient competent testimony to support the verdict of guilty as to defendant Brewer under count 2, it must be remembered that the jury failed to find defendant Brewer guilty is charged in this count. We are satisfied that there is no competent direct, or circumstantial evidence in the record which establishes as against defendant Brewer the corpus delicti of the offense with which he is charged in count 1 of the information. This being true, the statements, admissions, or confessions of the defendant Brewer, made prior to the trial and repudiated by him upon the witness stand, which were testified to by witnesses for the prosecution, are insufficient of themselves,...