State v. Brunn

• Decision Date: 04 January 1945
• Docket Number: 29263.
• Parties: STATE v. BRUNN.
• Court: Washington Supreme Court

154 P.2d 826

22 Wn.2d 120

STATE v. BRUNN.

No. 29263.

Supreme Court of Washington, En Banc.

January 4, 1945

Proceeding by the State of Washington against Sydney Brunn under an indictment charging defendant with the crime of receiving stolen whisky of the value of $25, knowing that the same had been stolen, and with crime of receiving and concealing certain personal property of the value of $25, with knowledge of the fact that the same had been stolen. From an order dismissing the cause at close of the State's case, the State appeals.

Reversed and remanded.

Appeal from Superior Court, King County; Robert M Jones, judge.

Lloyd Shorett, John F. Evich, and Wm. R. Bell, all of Seattle, for appellant.

Henry Clay Agnew, of Seattle, for respondent.

ROBINSON Justice.

The information in this action contained two counts, the first charging the defendant with the crime of receiving stolen whisky above the value of $25, knowing that the same had been stolen; the second, with the crime of receiving and concealing certain personal property over the value of $25 with knowledge of the fact that the same had been stolen. The cause was dismissed, by order of the trial court, at the close of the state's case. The state has appealed from the formal order subsequently entered. It does so in reliance upon Rem.Rev.Stat. § 2183-1, of which the portion material here reads as follows: 'The state may have a right of appeal to the supreme court, upon giving the same notice as is required of other parties, when the error complained of is based on the following: * * * (5) Any order which in effect abates or determines the action, or discontinues the same, otherwise than by an acquittal of the defendant by a jury: Provided, That in no case shall the state have a right to an appeal where the defendant has been acquitted by a jury. (L. '25, Ex.Ses., p. 423, § 7.)'

The sole relief sought by the appellant is that this court order a new trial of the action. The respondent contends that such an order would constitute a peremptory mandate to the trial court to violate an unalienable right guaranteed to him in Art. 1, § 9, of the state constitution, which reads as follows: 'No person shall be compelled in any criminal case to give evidence against himself, or be twice put in jeopardy for the same offense.' (Italics ours.)

It is respondent's position that he has been in jeopardy, and that a new trial would place him twice in jeopardy, in violation of the foregoing provision. He accordingly moves to dismiss the appeal, contending that he cannot lawfully be tried again, and, since a new trial is the sole relief sought by the state's appeal, it would be idle and fruitless to consider it on the merits. The question thus presented is: Was the respondent once in jeopardy, within the meaning of Art. 1, § 9 of the state constitution?

In approaching the question, it will be necessary to consider the terms of the order appealed from and the circumstances which led to its entry. The formal order was signed by the trial judge on December 30, 1943. Endorsements show that it was presented by Mr. Evich, the deputy prosecuting attorney who represented the state, and, presumably, drafted the order. It also bears an endorsement: 'OK as to form, H. C. Agnew, Atty. for Deft.' It reads as follows:

'This matter having come on for hearing this 30th day of December, 1943, upon the motion of the defendant for the issuance of an order in the above entitled court for the dismissal of the above entitled action upon the ground and for the reason that the evidence produced by the plaintiff, State of Washington, was insufficient and the Court having examined all the evidence and having listened to the arguments of counsel and it appearing to the Court that the plaintiff, State of Washington, did not produce sufficient evidence to prove that the liquor offered in evidence but refused by the Court, was stolen property and that the defendant knew the same to have been stolen and the Court believing that the evidence was insufficient to prove the crime charged, now, therefore,

'It is hereby ordered, adjudged and decreed that the defendant's challenge to the sufficiency of the evidence be and the same is hereby sustained, and the above entitled cause is dismissed.'

It is said, however, on page 28 of the state's brief, that the court discharged the jury, although no motion challenging the sufficiency of the evidence had been formally made by respondent. At another point in the brief, it is said that such a motion was 'interposed inferentially.' An examination of the statement of facts, prepared by the state and certified by the trial judge about six weeks after signing the order as containing all material facts, matters, and proceedings, and so forth, occurring at the trial, indicates that, in fact, no challenge to the evidence was made. It therein appears that the state, having presented all its oral testimony and being about to rest its case, offered in evidence some twenty cases of whisky, and defendant's counsel, indicating that he wished to argue objections to their admission, suggested that the matter ought to be taken up in the absence of the jury. The jury was excused, and he began his argument. Among the grounds he suggested for the exclusion of the proffered exhibits was that there was no evidence to show that the defendant knew that they were stolen, and, while pursuing this line of argument, said: 'Of course that is more properly when it comes time for my argument on a directed verdict. But I still urge that as an additional ground as to all exhibits.'

At this point, the court entered into a colloquy with the deputy prosecuting attorney as to whether or not there was such evidence, which was discontinued by a recess, after which the record notes: 'Argument continued by both parties.' This is followed by:

'The Court: Members of the Jury: The State has moved the admission of these various and sundry exhibits of whisky or empty whisky boxes, and has now rested its case.

'The defendant has challenged the sufficiency of the evidence, even though you believed all of it and all reasonable inferences that might arise from it, to convict the defendant of the charge that he bought stolen whisky, knowing that it was stolen.'

The trial judge then gave, at some length, his reasons for the action he was about to take, and concluded as follows: 'I have concluded that I have to sustain the challenge to the sufficiency of the evidence to warrant a conviction, however much we may feel that the defendant here is an undesirable person and that something should be done to him; yet you can not, under this evidence, find him guilty of having acquired or having after acquired sold stolen whisky, knowing it to have been stolen.'

It seems apparent that, because the long argument which took place on defendant's motion to exclude the cases of whisky offered as exhibits was largely devoted to the insufficiency of the evidence to show that they had been stolen, the trial judge got the impression that a motion had been made by the defendant for dismissal for insufficiency of evidence to warrant a conviction. At any rate, the court dismissed the jury without waiting for the motion for a directed verdict which defendant's counsel had indicated that he would make in due course. It is further apparent that the reasons which the court gave for dismissing the action would have required him to direct a verdict for the defendant had one been made. We will recur to this matter later in the opinion.

Although the respondent has the affirmative on the question of law submitted for our decision, the state's contentions will be considered first.

There is a double jeopardy provision in the federal constitution and in the constitutions of all of the states, except Connecticut, Maryland, Massachusetts, North Carolina, and Vermont, and even in those five states the right involved is enforced as a common-law right. In the federal constitution and in the constitutions of more than thirty of the states, the wording of the provision is the same, or substantially the same, as in our own. It follows that there is a veritable wilderness of case authority. There are also many articles on the subject in legal periodicals, and, although they are, for the most part, devoted to criticism of the present state of the law, rather than the constitutional difficulty of finding a remedy, their footnotes are invaluable in locating the more important cases. Typical of such articles are the following: Former Jeopardy, 35 Yale L. J. 674; Appeals by the State in Criminal Cases, 36 Yale L. J. 486; Criminal Law and Procedure in New York, 26 Columbia L. Rev. 253; The Right of the State to Appeal in Criminal Cases, 3 Missouri L. Rev. 305; The Scope of Appeal in Criminal Cases, 84 Pennsylvania L.Rev. 825; Appeal by the State in Criminal Cases, 15 Oregon L. Rev. 306. See, also, the discussion at the 1935 meeting of the American Law Institute reported in Volume 12 of its Proceedings, page 200.

Agitation by various legal reform bodies against certain phases of the double jeopardy rule, as applied in the courts, began many years ago. In its first stages, the movement was devoted to an attack on the rule applied by this court in State v Kinghorn, 56 Wash. 131, 105 P. 234, 235, 27 L.R.A.,N.S., 136. In that case, the defendant was charged with rape. A jury was impaneled and sworn. The prosecuting witness was called to the stand, and the preliminary questions propounded, whereupon the defendant objected to the introduction of any further evidence and moved to dismiss the case, on the ground that he had not been arraigned and had not pleaded. The defendant was thereupon arraigned and pleaded not guilty. On the motion of the state,...