State v. Douglas

• Decision Date: 25 May 1967
• Docket Number: No. 38887,38887
• Citation: 71 Wn.2d 303,428 P.2d 535
• Parties: STATE of Washington, Respondent, v. Ronnie Charles DOUGLAS, Appellant.
• Court: Washington Supreme Court

Page 303

71 Wn.2d 303

428 P.2d 535

STATE of Washington, Respondent, v. Ronnie Charles DOUGLAS, Appellant.

No. 38887.

Supreme Court of Washington, Department 2.

May 25, 1967.

Wm. J. Gaffney, Seattle, for appellant.

Charles O. Carroll, Pros. Atty., Bruce W. Rudeen, Deputy Pros. Atty., Seattle, for respondent.

HILL, Judge.

Ronnie Charles Douglas was charged with grand larceny in that on or about the 19th day of January, 1966, he received, concealed, or withheld or aided in concealing and withholding personal property of Edwin O'Brien, with the intent to deprive or defraud the owner thereof, which property had been wrongfully appropriated from its owner; and the defendant knew that it had been so appropriated; and that such property was of a value in excess of $75.

The jury was instructed that if the charge was established in all respects, except as to value, the defendant could be found guilty of the lesser included offense of petit larcency; and that is what the jury did.

On that verdict, the trial court imposed judgment of conviction and sentence, from which the defendant has appealed.

The essential facts are that some time between January 2 and 9, 1966, the home of Mr. and Mrs. Edwin O'Brien in North Bend was burglarized. The O'Briens occupied this home only on weekends, and first discovered that their home had been looted on the latter date.

County Detective Eugene Steinauer was assigned to this burglary case on January 17. When the articles which had been taken were described to him, he was immediately impressed with the similarity to articles which he had seen four days earlier (January 13) in the apartment of the defendant.

Steinauer proceeded, under the advice of the prosecuting attorney's office, to secure a warrant authorizing him to search the defendant's apartment.

The O'Briens were present when the apartment was searched January 19, and they identified the articles taken from their home, as they also did at the trial.

The defendant's explanation was that, while in charge of a service station in North Bend, on a date two or three days prior to January 13, an Indian, accompanied by his wife and two or three children, drove up and wanted some gas but had no money. The defendant further testified that the Indian referred to some articles which were in his car (the articles here in question) and asked the defendant to make an offer. Needing such articles to furnish his apartment, he offered $40 and a tank of gas for them, and the Indian accepted and put the articles in the defendant's car. No one else was present at the time this transaction occurred (about 2 a.m.).

Only two issues are raised on this appeal. We will first consider whether the trial court erred in failing to give an instruction which both the state and the defendant had requested, i.e.:

In order to convict the defendant on the basis of circumstantial evidence, the facts and circumstances relied upon should be consistent with each other, and with the guilt of the defendant. They should be inconsistent with any reasonable theory of innocence. They should be of such character as to exclude every reasonable hypothesis other than that of guilt. Circumstantial evidence meeting these requirements is entitled to the same weight as direct evidence. Strong circumstantial evidence often is the most satisfactory method from which to draw the conclusion of guilt or innocence. (Defendant's requested instruction No. 1.)

Instead, the court gave the following circumstantial-evidence instruction:

A fact may be proven by proof of circumstances from which such fact may be reasonably inferred. To base a verdict on circumstantial evidence it must be such as to convince you of guilt beyond a reasonable doubt. (Instruction No. 5.)

The latter instruction, the defendant claims, is not adequate where there are multiple hypotheses from the circumstantial evidence from which differing conclusions as to guilt or innocence may be reached.

The evidence against the defendant is entirely circumstantial. We long ago said that bare possession of recently stolen property alone is not sufficient to justify a conviction (State v. Humason, 5 Wash. 499, 32 P. 111 (1893)), and, as indicated in State v. Portee, 25 Wash.2d 246 170 P.2d 326 (1946), that statement has been many times repeated. ¹

Without something more than the discovery of the articles from the O'Brien home in the defendant's apartment, the state could not convict the defendant of either burglary or larceny. But, as quoted in Portee, supra at 253, 170 P.2d at 330, Wharton says:

'Mere possession of stolen goods, unaccompanied by other evidence of guilt, is not to be regarded as prima facie evidence of burglary. But the rule is otherwise when there is indicatory evidence on collateral points.' (Italics supplied in Portee.)

and Nichols is quoted:

'Sufficiency in connection with other evidence. Possession of recently stolen property, in connection with other evidence tending to show guilt, is sufficient to warrant a conviction. When a person is found in possession of recently stolen property, slight corroborative evidence of other inculpatory circumstances tending to show his guilt will support a conviction. When the fact of possession of recently stolen property is supplemented by the giving of a false or improbable explanation of it, or a failure to explain when a larceny is charged, or the possession of a forged bill of sale, Or the giving of a fictitious name, a case is made for the jury.' (Italics supplied by Portee.)

The Washington cases, as discussed in Portee, supra, support these text statements. Two of the additional circumstances listed in Portee were:

(3) an explanation of a kind that could not be checked or rebutted and (4) one that a jury could regard as improbable.

As indicated, the defendant explained his possession of the articles taken from the recently burglarized O'Brien home by saying that he had purchased them from an Indian for $40 and a tank of gas, and that no one was present at the time except himself, the Indian, and the Indian's family. The defendant had never seen the Indians before nor has he seen them since; he did not take the license number of the car, or any receipt for his money, or any paper evidencing the sale of the articles to him.

This, in the language of Portee, is an explanation of a kind that cannot be checked or rebutted, and one that a jury could regard as improbable.

There were at least three hypotheses that a jury might accept: one, that the defendant was lying and there had been no transaction with an Indian; two, that the defendant did buy articles from the Indian, but that, under the circumstances, he must have known that they were stolen; and three, that he did buy the articles from the Indian and that he did it in good faith, believing that they belonged to the Indian. Either of the first two would lead to a verdict of guilty; the third to a verdict of not guilty.

Judge Steinert, in State v. Gillingham, 33 Wash.2d 847, 854, 207 P.2d 737, 741 (1949), says it is a well-established rule

(T)hat, in order to sustain a conviction on circumstantial evidence, the circumstances proved by the state must not only be consistent with each other and consistent with the hypothesis that the accused is guilty, but also must be inconsistent with any hypothesis or theory which would establish, or tend to establish, his innocence. ²

It is on this statement that the defendant's proposed instruction was based, and such an instruction should be given where circumstantial evidence is relied on to sustain the conviction and there are multiple hypotheses from the circumstantial evidence, one of which would establish or tend to establish the innocence of the defendant.

We have re-affirmed the rule in a very recent opinion, State v. Slaughter, 70 Wash.Dec.2d 907, 425 P.2d 876 (1967), in which we stated that, where a conviction was based on circumstantial evidence,

(S)uch evidence not only must concur to show defendant guilty, and be consistent with a hypothesis of guilt, but also must be inconsistent with any other rational conclusion and exclude every other reasonable theory or hypothesis except that of guilt. It is the jury, under proper instructions, which makes the determination whether the circumstantial evidence excludes every reasonable hypothesis consistent with innocence.

Nor is State v. Studebaker, 67 Wash.2d 980, 410 P.2d 913 (1966), an authority supporting the refusal to give the instruction. (In a colloquy between the trial court and counsel, the Studebaker case was apparently the one to which reference was made as a basis for refusing to give the requested instruction.) We said in that case:

The defendant contends the trial court erred in failing to give his proposed instruction to the effect that where there are two hypotheses that can reasonably be drawn from the evidence, one leading to innocence and the other leading to guilt, the former hypothesis must be followed.

This type of instruction is properly given in cases where there is circumstantial evidence and inconsistent inferences of the defendant's guilt or innocence may reasonably be drawn therefrom. Such a case is not before us. * * * (p. 986, 410 P.2d 913, 917) (Italics ours.)

Studebaker, supra, was not, as the court indicated in the foregoing quotation, a circumstantial-evidence case, i.e., if the jury believed the prosecuting witness, the defendant was guilty. But there is now before us a case in which there is circumstantial evidence and inconsistent inferences of guilt or innocence to be drawn therefrom. The trial court erred in refusing to give the requested circumstantial-evidence instruction.

The other question raised on this appeal is: Did the trial court err in refusing to suppress the evidence seized under the search warrant in this case?

Detective Steinauer signed an affidavit for a search warrant in the presence of the court commissioner of the Sno Valley District...