State v. Durning, 39319
| Decision Date | 20 July 1967 |
| Docket Number | No. 39319,39319 |
| Citation | 430 P.2d 546,71 Wn.2d 675 |
| Parties | The STATE of Washington, Respondent, v. Gerald R. DURNING and William S. Board, Appellants. |
| Court | Washington Supreme Court |
Young, Hoff & Regan, Victor V. Hoff, Seattle, for appellants.
Charles O. Carroll, Pros. Atty., John S. Ludwigson, Deputy Pros. Atty., Seattle, for respondent.
*
In this appeal we deal with convictions of the defendants for burglary in the second degree.
The fact are clear. At some time between the evening of August 23, 1966, and the morning of August 24, 1966, the Kenmore Lumber Company office was entered and the company's safe was removed. Early in the morning of August 24, a person living near the lumber yard heard noises in the lumber yard and informed Seattle police officers. Upon investigation the police officers saw and then apprehended the defendants in the lumber yard after a short chase. The company's safe was found in the lumber yard with its dial knocked off. The defendants gave false names upon being questioned. The officers found a car parked near the lumber yard that, as was later determined, belonged to a woman with whom the defendants had been on the evening of August 23. In the car was a wallet belonging to defendant Board. A shirt claimed by defendant Durning was found on a stack of lumber near the safe.
The door to the company office showed signs of having been forced open.
The defendants' arguments on this appeal involve objections to three instructions given by the trial court. They object to instruction No. 4, which reads as follows:
Every person who, with intent to commit some crime therein, shall break and enter any building, or part thereof, not being lawfully owned or occupied by said person, wherein any property is kept for use, sale or deposit, shall be guilty of burglary in the second degree.
Every person who shall unlawfully break and enter any such building shall be deemed to have broken and entered the same with intent to commit a crime therein, unless such unlawful breaking and entering shall be explained by testamony satisfactory to the jury to have been made without criminal intent.
The word 'building' shall include every house, shed, boat, watercraft, railway car, tent or booth, whether completed or not, suitable for affording shelter for any human being, or as a place where any property is or shall be kept for use, sale or deposit.
The defendants make several contentions in regard to this instruction. First of all they argue that the instruction did not advise the jury that the presumption of intent from unlawful entry was not conclusive.
This argument is unsound. The second paragraph of this instruction is based upon the language of RCW 9.19.030, and this statute by its own terms makes the presumption rebuttable when it states, 'unless such unlawful breaking and entering * * * shall be explained by testimony satisfactory to the jury to have been made without criminal intent.' Hence, an instruction in the language of the statute was sufficient to inform the jury that the presumption is rebuttable. See Barrios v. State, 83 Tex.Crim. 548, 204 S.W. 326 (1918). Furthermore, this instruction is standard, and has been approved in previous cases by this court. State v. Rosencrans, 24 Wash.2d 775, 167 P.2d 170 (1946). See also State v. Westphal, 62 Wash.2d 301, 382 P.2d 269 (1963).
The defendants also argue that this instruction shifts the burden of proof to them. Again we disagree. The same contention was made in Jackson v. United States, 330 F.2d 679, 682 (8th Cir. 1964). In the Jackson case it was decided that an instruction based upon a statute which stated that possession of narcotics is sufficient for conviction "unless the defendant explains the possession to the satisfaction of the jury" was not erroneous as improperly shifting to the defendant the burden of proving himself free from guilt.
The court gave instruction No. 9 as follows:
The court instructs the jury that the law presumes that every man intends the natural and probable consequences of his own acts. It is not necessary to establish intent by direct and positive evidence but intent may be established by inference and in the same way as any other fact by taking into consideration the acts of the parties and all the facts and circumstances of the case.
The defendants object to it on several grounds, however, we find the arguments to be without merit. We note too, that an identical instruction was approved in State v. Nelson, 65 Wash.2d 189, 396 P.2d 540 (1964).
The defendants also challenge the propriety of instruction No. 11....
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State v. Upton, 1726--II
...is erroneous is not a matter of semantics, but rather whether the jury was misled as to its function under it. State v. Durning, 71 Wash.2d 675, 430 P.2d 546 (1967); State v. Redden, 71 Wash.2d 147, 426 P.2d 854 (1967). The second sentence, when read in conjunction with the last sentence of......
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State v. Livengood
...the past. State v. Galen, 5 Wash.App. 353, 487 P.2d 273 (1971); State v. Reid, 74 Wash.2d 250, 444 P.2d 155 (1968); State v. Durning, 71 Wash.2d 675, 430 P.2d 546 (1967); State v. Anderson, 5 Wash. 350, 31 P. 969 (1892). However, the statute must now meet the test announced in State v. Odom......
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State v. Galen
...Anderson, 5 Wash. 350, 31 P. 969 (1892), and more recently in State v. Reid, 74 Wash.2d 250, 444 P.2d 155 (1968) and State v. Durning, 71 Wash.2d 675, 430 P.2d 546 (1967). The question of whether the statute invades the defendant's Fifth Amendment privilege against self-incrimination was no......
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State v. Sykes
...and instruct the presumption is not binding and that there is still an issue of intent for their determination. State v. Durning, 71 Wash.2d 675, 430 P.2d 546 (1967), decided after Gainey but before Leary, concludes the statutory language used in this instruction does not advise the jury th......