State v. Franklin

• Decision Date: 10 May 1923
• Docket Number: 17627.
• Citation: 124 Wash. 620,215 P. 29
• Parties: STATE v. FRANKLIN et al.
• Court: Washington Supreme Court

215 P. 29

124 Wash. 620

STATE v. FRANKLIN et al.

No. 17627.

Supreme Court of Washington

May 10, 1923

Department 2.

Appeal from Superior Court, Grant County; Sam B. Hill, Judge.

John Franklin and others were convicted of burglary, and appeal. Judgment as to Franklin reversed; otherwise affirmed.

Don F Kizer and Joseph J. Lavin, both of Spokane, for appellants.

N. W Washington, of Ephrata, for the State.

PEMBERTON J.

The appellants were found guilty by verdict of the jury of the crime of burglary in the first degree, and appeal from the judgment and sentence pronounced against them.

Counsel for appellants assign a number of errors. Among them the contention is made that the court erred in refusing to grant defendants separate trials; in admitting certain evidence offered on behalf of the state; in denying motion to dismiss at the close of the state's evidence; in refusing to direct a verdict in favor of the appellants.

On the morning of December 24, 1921, it was discovered that the Warden State Bank at Warden, Wash., had been broken into. Appellants were charged by information with the crime of burglarizing the bank. Tracks in the snow indicated that two persons had committed the offense and had left in an automobile having chains upon the rear wheels quite different from the ordinary and usual tire chains. On the afternoon of December 24, 1921, the defendant O'Neal sold three Liberty Bonds to a Spokane pawnbroker. About 6 o'clock in the afternoon of the same day he returned and sold another bond, which bond was identified as one of the Liberty Bonds stolen from the bank. Appellant Harris remained outside the pawnshop while O'Neal made these sales, and thereafter accompanied him to a pool hall, where they were arrested. On January 1, 1922, appellants Gates and Franklin were arrested in Portland upon the charge of having an automobile without a proper license. The automobile was the property of appellant Gates, and had chains and tires corresponding to the tracks of the automobile the night of the burglary.

The question as to whether or not the defendants should have been granted separate trials is one within the discretion of the trial court.

'When two or more defendants are indicted or informed against jointly, any defendant requesting it may, in the discretion of the trial judge, be tried separately.' Section 2161, Rem. Comp. Stat.

Appellant Harris was with O'Neal, who had in his possession on the afternoon of the day of the burglary a Liberty Bond stolen from the Warden State Bank, and was wearing shoes with the letters K-E-R upon the rubber heels similar to those shown in the tracks in the snow leading from the place of the burglary. Appellant Gates was the owner and had in his possession at the time of the burglary the automobile used by the burglars, in which automobile were found certain burglar's tools. Appellants contend that these circumstantial facts are not sufficient in themselves to connect appellants with the crime charged.

'The state may show possession of the stolen property by defendant jointly with another, particularly where they are jointly indicted and tried. And the possession of another than defendant may be shown if a conspiracy between them is proved, or if there is evidence tending to connect them as accomplices. * * *' 9 C.J. 1072.

'Proof of unexplained possession by defendant shortly after the burglary is not prima facie proof that he committed the burglary, but that it is alone sufficient to authorize the jury to convict if they are convinced of his guilt beyond a reasonable doubt under all the circumstances.' 9 C.J 1082.

This seems to be the rule in this state. State v. Beeman, 51 Wash. 557, 99 P. 756; State v. Dotson, 97 Wash. 607, 166 P. 769. The court properly denied the motion to dismiss made at the conclusion of the state's case by appellants Gates and Harris.

The only evidence connecting appellant Franklin with the offense is the fact that he was with Gates at the time of the arrest in Portland, Or. This evidence alone is not sufficient to connect him with the crime charged, and the motion made at the conclusion of the state's case requesting the action to be dismissed as to appellant Franklin should have been granted.

The contention is made that the information is defective in that it does not allege ownership of the building burglarized.

Section 2578, Rem. Comp. Stat., defining burglary, reads as follows:

'Every person who, with intent to commit some crime therein, shall enter in the nighttime, the dwelling house of another in which there shall be at the time a human being----

'(1) Being armed with a dangerous weapon; or

'(2) Arming himself therein with [a dangerous] weapon; or

'(3) Being assisted by a confederate actually present; or

'(4) Who, while engaged in the nighttime in effecting such entrance, or in committing any crime in such

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