State v. Garske, 39686

• Decision Date: 21 November 1968
• Docket Number: No. 39686,39686
• Citation: 447 P.2d 167,74 Wn.2d 901
• Court: Washington Supreme Court
• Parties: The STATE of Washington, Respondent, v. Leroy Delbert GARSKE, Appellant.

Page 901

74 Wn.2d 901

447 P.2d 167

The STATE of Washington, Respondent, v. Leroy Delbert GARSKE, Appellant.

No. 39686.

Supreme Court of Washington, Department 2.

Nov. 21, 1968.

Flynn & Lipscomb, Michael C. Lipscomb, Bellingham, for appellant.

Stanley Pitkin, Pros. Atty., Richard A. Busse, Deputy Pros. Atty., Bellingham, for respondent.

WEAVER, Judge.

Defendant, 42 years of age, who testified that he had been convicted at least 5 times of statutory crimes, appeals from a judgment and sentence entered after a jury had found him guilty of second degree burglary.

Defendant's 8 assignments of error present 3 issues of law: (1) the validity of a search; (2) the sufficiency of the evidence to support a conviction; and (3) the prejudicial effect, if any, of the prosecutor's argument.

Defendant was suspected by the police of burglarizing a jewelry store. The suspicion arose from the fact that he was stopped and questioned around midnight by patrolman Tawes of the Ferndale police department a short distance from the jewelry store. The burglary was not discovered until about 8:00 a.m. the next morning. Some jewelry was found in the vicinity where defendant had been questioned.

Defendant had been living in the home of Mrs. Lydia Stam, 66 years of age, for about 3 weeks. He was not paying rent. He slept in the front room on the davenport. Mrs. Stam testified that she looked upon defendant 'as I would one of my sons.' Defendant did not have exclusive use of the room in which he slept.

Remembering that he had confronted defendant near the jewelry store late at night, Officer Tawes and a deputy from the Whatcom county sheriff's office went to the home of Mrs. Stam shortly after the burglary was discovered.

In the presence of defendant, the officers asked Mrs. Stam if they could seatch the premises. There is evidence to support defendant's statement: 'Go ahead. I don't have anything to hide.' Mrs. Stam signed a 'Voluntary Search Warrant.'

The officers entered and searched the house. Two wristwatches were found in a tennis shoe near the davenport. Although defendant acknowledged ownership of the shoe, he denied knowledge of the watches.

Defendant was arrested after the watches had been identified by the owner of the jewelry store. Subsequently, the officers searched the grounds around the house. They found most of the stolen jewelry and watches in a recess in an old lumber pile at the rear of Mrs. Stam's premises. The photographic exhibits in evidence support this.

Whether there has been a waiver of the necessity of a search warrant is a factual question, and the burden of proving it rests upon the state. State v. Smith, 72 Wash.Dec.2d 472, 434 P.2d 5 (1967). It is beyond dispute that Mrs. Stam gave both oral and written consent to the search. We have made an independent examination of the record of the hearing upon defendant's motion to suppress the evidence because of the claimed illegal search. In re McNear v. Rhay, 65 Wash.2d 530, 398 P.2d 732 (1965). We conclude, as did the trial court, that the state sustained the burden of proof required and that permission for the search was made voluntarily and without force, coercion, or inducement. It was not error, therefore, to admit in evidence the result of the search.

Next, defendant argues that the evidence is insufficient to support a charge of second degree burglary. We do not agree. Mere possession of stolen goods, unaccompanied by other evidence of guilt, is not prima facie evidence of burglary; but the rule is otherwise where there is indicatory evidence...