State v. Gillingham

• Decision Date: 23 June 1949
• Docket Number: 30883.
• Citation: 207 P.2d 737,33 Wn.2d 847
• Parties: STATE v. GILLINGHAM.
• Court: Washington Supreme Court

207 P.2d 737

33 Wn.2d 847

STATE v. GILLINGHAM.

No. 30883.

Supreme Court of Washington

June 23, 1949

Department 1

Prosecution of Hubert Byron Gillingham, Jr., on an information charging grand larceny. The court directed the jury to return a verdict of acquittal, and the State of Washington appeals.

Judgment affirmed.

Appeal from Superior Court, Grant County; Robert T. Hunter, judge.

James F. Wickwire, Nat W. Washington, Ephrata, for appellant.

Moe &amp Huse, Ephrata, for respondent.

STEINERT Justice.

The defendant was charged by information with the crime of grand larceny, alleged to have been committed as follows:

'That the said Hubert Byron Gillingham, Jr., in the County of Grant, State of Washington, on or about the 17th day of February, 1948, then and there being, willfully, unlawfully and feloniously did take, steal and carry away about 804 pounds of copper wire of the value of more than $25.00 to-wit: of the value of $104.50 in lawful money of the United States, the property of Alec Cook, with the intent to deprive and defraud the said Alec Cook thereof.'

The cause proceeded to trial Before a jury. At the conclusion of the state's evidence, the defendant moved for a directed verdict of not guilty. The court granted the motion and by verbal instruction, followed by the entry of a written order to the same effect, directed the jury to return a verdict of acquittal. The jury complied with the court's direction and order, and, upon entry of the verdict, the state appealed.

Appellant assigns error on the part of the trial court (1) in holding that the evidence introduced by the state was insufficient to take the case to the jury on the question of whether respondent, Hubert Byron Gillingham, Jr., was guilty of the crime charged in the information, and (2) in refusing the state's offer of proof of certain facts and circumstances allegedly tending to identify respondent as the perpetrator of the crime. The questions presented by these assignments of error necessarily require an examination and evaluation of the evidence which the state introduced and also a consideration of certain additional evidence which was offered by the state, but was rejected by the trial court.

At all times relevant herein, Alex Cook, referred to in the information as Alec Cook, was the owner of a farm comprising something over four hundred acres, situated about a mile and a quarter southeast of Wilson Creek, in Grant county. Lavene Cook, son of Alex Cook, resided upon the farm and conducted the operation thereof.

Extending across the northerly portion of this property and running in an easterly-westerly direction were two paralled highways, designated as old primary state highway No. 7 and new primary state highway No. 7, respectively. The farmhouse and other buildings were located just south of the old highway and about seventy-five yards north of the new highway. Approximately one hundred fifty-six acres of the farm immediately south of the farm buildings were devoted to raising grain; the remainder of the land, lying further south, was used for pasturing cattle.

A dead three-wire power line, which belonged to Alex Cook, extended from a point on the old highway, near the farmhouse, in a southerly and southwesterly direction, to an old abandoned soda mine, or soda lake, located in the southern part of the Cook land. This power line included about nineteen poles situated approximately two hundred forty feet apart, the first polesouth of the new highway being about one hundred twenty-five yards south of the farmhouse. At least the first ten of these poles were plainly visible from Cook's dwelling house.

From the easterly side of the Cook farm an old road led in a southwesterly direction to the soda mine, or soda lake, mentioned above. This road ran practically parallel with, and just a short distance east of, the power line, but crossed the line near its southern terminus, near the soda mine.

At the time the new highway No. 7 was constructed, the wires of the power line were severed at the place where the line crossed the new road and the respective ends of the wires thus severed were rolled backward and hung upon the nearest pole on each side of the new highway. The rest of the power line was left intact, though unused. Neither Alex Cook nor Lavene Cook ever gave anyone permission to remove any portion of the wire from the poles.

Respondent, Hubert Byron Gillingham, Jr., is a farmer residing upon and operating a large ranch a few miles distant from the Cook farm.

The state's case rested chiefly upon the testimony of Lavene Cook, Wado Bush, who was a deputy sheriff, and Charles E. Sanders.

Lavene Cook testified, in substance, as follows: At about nine o'clock in the morning of February 17, 1948, while he was standing near his garage, he observed a red Studebaker truck parked for a short while on the new highway at a point about fifty yards east of the place where the power line crossed that highway, and about seventy-five yards distant from him. He was 'almost sure' that it was respondent's truck, with which Cook was familiar by reason of having seen it elsewhere on other occasions. He observed a number of people in the truck at this particular time, but did not know how many persons there were, nor did he recognize any of them. He did not identify respondent as one of its occupants and had no 'idea who was driving it' that morning, although he said the truck proceeded away in a westerly direction.

That same night, at about ten o'clock, Cook went outside his house to look around the premises, and, on turning on his floodlights, saw a truck that 'looked like' the one he had observed earlier that day. The truck was standing on the highway at about the same place where he 'had seen it in the morning.' Shortly thereafter, the truck drove away, but Cook did not see, and could not tell, who was driving it.

On February 20th Cook went out to his pasture, in the southern part of his farm, to look over his cattle. He at that time noticed that a number of poles of the power line had been pushed over, apparently by means of a truck, and that the wire had been removed from the entire power line. However, he was unable to state when he had last seen the wire in place, nor could he testify as to any specific time that the wires were still attached to the poles, either prior or subsequent to February 1st of that year. Furthermore, he could not recall when he had last been at the soda mine, where he could have had a complete view of the eight or nine poles constituting the southern half of the power line.

Upon his discovery of the condition of the poles and the removal of the wire, Cook immediately communicated with the sheriff's office, and, in response to his call, Wado Bush, a deputy sheriff, went out to the Cook farm. The two men thereupon inspected the area surrounding the pole line and then discovered tire along the length of the line, indicating that a truck having six wheels had been used to push over some of the poles. These tracks appeared to have been made by tires having a 'wavy' or 'kinky' tread. However, there were no distinguishing marks or peculiarities in or about the tracks to indicate that they were made by any particular truck having tires of the general kind above mentioned. Some days thereafter, Cook saw respondent's truck in town and observed that it had Firestone tires, the treads of which were wavy, or kinky.

The principal witness for the state was the deputy sheriff, Wado Bush. His testimony may be summarized as follows: In response to Lavene Cook's telephone call on February 20th, Bush went at once to the Cook farm, and the two men made an inspection of the ground in the vicinity of the pole line. They discovered tire tracks, which Bush thought were made by a truck having Firestone tires, although he conceded that many makes of tires had a wavy tread, and admitted that he could not explain the difference between the tread of a Firestone tire and those of various other makes of tires. He also admitted that he could not tell whose truck, or what particular truck, had made the tracks which he observed during that inspection. Upon that same occasion, near the places where the poles had been pushed over, he observed a number of foot prints, of two different sizes. Some of these prints had the appearence of having been made by a 'cowboy boot-type heel'; however, the heel prints had no distinguishing marks.

On March 3d, which was about ten days after his investigation at the Cook premises, Bush called at the Gillingham ranch and had a talk with the respondent. During that conversation, Bush asked respondent whether he knew anything about the wire that had been taken from the Cook land, and respondent replied that he did not. Bush then stated that he had reason to believe that respondent's truck had been seen in the vicinity of the Cook farm on a recent night. In reply to this, respondent said: 'Well, if my truck was down there, I didn't know anything about it.' Bush then asked respondent whether he had ever sold any wire, and the latter replied that he never had. During this same conversation, Bush observed that respondent was wearing cowboy boots, and that respondent's truck, standing nearby, had Firestone tires with a wavy tread. The witness stated, however, that he would not be able to tell whether the heel prints which he had seen were made by the boots worn by respondent.

On September 19, 1948, which was seven months after the events above narrated, respondent was arrested upon a charge of grand larceny alleged to have been committed in the manner hereinBefore set forth. On the following day, while respondent was in custody, the deputy sheriff and the prosecuting attorney for Grant county questioned...