State v. Dunn, 22762.

• Decision Date: 18 December 1930
• Docket Number: 22762.
• Citation: 159 Wash. 608,294 P. 217
• Parties: STATE v. DUNN.
• Court: Washington Supreme Court

294 P. 217

159 Wash. 608

STATE v. DUNN.

No. 22762.

Supreme Court of Washington

December 18, 1930

Department 2.

Appeal from Superior Court, Spokane County; W. A. Huneke, Judge.

Albert Dunn and another were convicted of bootlegging and of having intoxicating liquor in their possession with intent to sell such liquor, and defendant named appeals.

Affirmed.

W. C. Donovan, of Spokane, for appellant.

Charles W. Greenough and Ralph E. Foley, both of Spokane, for the State.

MILLARD J.

By information of two counts Albert Dunn and Joe Jamieson were jointly charged with the crime of bootlegging and with the crime of having intoxicating liquor in their possession with intent to sell the same. The trial resulted in verdict of guilty on both counts as to both defendants. From the judgment and sentence pronounced in accordance with the verdict, defendant Dunn prosecutes this appeal.

Error is first assigned upon the overruling of the motion for an instructed verdict of not guilty. Counsel contends that there was no evidence from which the jury could find that the appellant carried intoxicating liquor about with him for the purpose of unlawful sale or that he had intoxicating liquor in his possession with intent to sell the same.

It is argued that the liquor was the property of Jamieson, who got it from an ice box in the back of his store; that Dunn never saw it or handled it; that there is no evidence Dunn had possession of the liquor, carried the same about, and intended to unlawfully sell the same.

The evidence is, in substance, as follows:

Joe Jamieson, with his wife and child, lived at the corner of Napa and Third streets in the city of Spokane, where they conducted a small grocery store and a gas filling station. The family lived in quarters adjoining the store at the rear. Two police officers, who were assigned to duty on the prowl car between 4 p.m. and 12 midnight, passed appellant, Dunn, in another car the night of October 23 1929. Recognizing him, they turned around to follow him, but he got away. The two officers testified that later on that night they met Dunn again, but he turned out the lights on his car and again escaped the officers. Riding around in that vicinity, the officers later noticed the appellant's car parked at the grocery store of Jamieson at Third and Napa streets. Officer Rummer got out of the car and went around to a window which was about five feet from the ground on the side of the store. The other officer drove the car through an alley and parked it nearby, where he could watch the store. Rummer testified that from where he was standing he could see appellant and Jamieson standing in the back part of the store, and that he could hear part of their conversation. He testified, in part, as follows 'Well, I see Dunn and Jamieson in the store through the window, and I could hear them talking, and Dunn said to Jamieson, 'Do you remember that woman down at the Hotel?' And Jamieson said, 'Yes,' and he says 'She has some more customers for us,' and they said some more that I couldn't understand what that was about. In a minute Dunn picked up a jug and says, 'I think you had better take this over to Napa to him tonight,'; and he handed the jug to Jamieson, and Jamieson put it under his coat, and said 'All right, I will take it.' He said 'Take over to the same place you took that half gallon before, at Mallon and Madelia; there will be a black Hudson coupé waiting there, and all you have got to do is just hand it to them and go on; everything is O. K. now.' At that moment I went to the front of the store and Jamieson came out, and Dunn opened the store door for Jamieson, and when he saw me he sat down at the radio and started to play the radio.'

Rummer asked Jamieson for the whisky, and it was handed to him. Dunn and Jamieson were both placed under arrest. On the way down to the station, Officer Rummer said to Jamieson, 'When we caught you before we thought you fellows would have laid off that kind of stuff,' to which Jamieson replied, 'Well, if you thought we were laying off, why were you after us?'

Jamieson denied that any conversation like that related by Rummer took place between him and Dunn. He testified that he had purchased the gallon of moonshine whisky to take with him on a party he was to attend the night he was arrested; that he did not know where the party was to be held, but that a friend of his was going to call up that evening and inform him where to meet him; that appellant, Dunn, answered the phone when that friend called, and that he told Dunn where to have Jamieson meet him. Dunn testified that he was in Jamieson's store the night in question; that he answered...