State v. Harmon

• Citation: 152 P.2d 314,21 Wn.2d 581
• Decision Date: 13 October 1944
• Docket Number: 29379.
• Parties: STATE v. HARMON.
• Court: United States State Supreme Court of Washington

152 P.2d 314

21 Wn.2d 581

STATE v. HARMON.

No. 29379.

Supreme Court of Washington

October 13, 1944

Department 1.

John Harmon was convicted of burglary in the second degree, and he appeals.

Judgment affirmed.

Appeal from Superior Court, Pierce County; F. G. Remann, judge.

Bertil E. Johnson, of Tacoma, for appellant.

Thor C Tollefson, Marshall McCormick and Theo L. DeBord, all of Tacoma, for respondent.

JEFFERS Justice.

The defendant, John Harmon, was, by an information filed by the prosecuting attorney for Pierce county, on September 15 1942, charged in two counts with two separate burglaries. Each count charged the crime of burglary in the second degree, under Rem.Rev.Stat. § 2579.

Inasmuch as no question is raised as to the sufficiency of the information, we shall set out only that part of each count which refers to the time and place of the alleged burglary.

In the first county defendant was charged with unlawfully breaking and entering a building known as the Sunshine Tavern, 937 South Tacoma avenue, Tacoma, Pierce county, Washington, on or about May 29, 1942. In the second count defendant was charged with unlawfully breaking and entering a building known as the Washington State Liquor Store, 25th and East 'D' street, Tacoma, Pierce county, Washington, on or about May 30, 1942.

Defendant appeared and entered a plea of not guilty to each count.

The cause came on for hearing Before the court and a jury on January 17, 1944, and on January 18th the jury returned a verdict of guilty on both counts. On January 20, 1944 defendant filed a motion for new trial, which was denied February 24, 1944. Judgment and sentence were entered February 26, 1944, and on the same day, in open court, defendant gave oral notice of appeal.

Appellant makes the following five assignments of error:

(1) Misconduct on the part of the prosecuting attorney in requesting the witness Ryan to claim his constitutional privilege to refuse to testify, thereby depriving appellant of the benefit of the testimony of the witness Ryan.

(2) In restricting the cross-examination of the witness Carl Brehan, and particularly in denying appellant the opportunity of inquiring into the number and kind of crimes Carl Brehan had committed immediately prior to his arrest.

(3) In sustaining respondent's objection to the testimony of the witness Carriker concerning the threat made by Brehan against appellant.

(4) In denying the offer that the witness Carriker would testify that the witness Brehan had threatened to 'get' appellant.

(5) In denying appellant's motion for new trial.

Before discussing the respective assignments of error, we think some of the testimony should be set out, in order that we may have the general picture presented to the trial court and jury, and particularly that we may have Before us the claimed relationship of appellant to the witnesses Brehan, Ryan and Carriker.

R. J. Morrison, a detective on the police force of Tacoma, was called by the state, and testified that at about six-twenty on the morning of May 29, 1942, he was on duty and received a call that the Sunshine Tavern had been burglarized. He proceeded immediately to the tavern and found that some boards had been removed from the back part of the building and an entrance apparently gained that way. Upon entering the building he found that the safe had been 'punched,' that is, the combination knocked off and an entrance to the safe effected.

Mr. Morrison was also on duty in the early morning of May 30, 1942, and at four-eleven of that morning he received a call informing him that something was wrong at the liquor store at East 25th and 'D' streets. He immediately went to the liquor store and found that an entry to the store had been made by picking a pane of glass out of the skylight. He further found that the screen below the skylight had been cut, and a rope attached to the screen hung down inside the store. An attempt had been made to 'punch' the safe, but entrance to the safe had not been affected. Morrison found a complete set of burglar tools in front of the safe. Apparently Lieutenant Gregg of the Tacoma police force had arrived at the liquor store Before Morrison, for when the latter arrived Gregg had Brehan in charge.

E. G. Weller, a merchant police, in making his rounds found the side door of the liquor store unlocked. He called the police and Gregg answered the call. Weller and Gregg went into the building, and found Brehan hiding under a desk in the office.

Eugene Ryan was called as a witness for the state, but refused to testify, on the ground that his testimony might incriminate him.

Carl Brehan was also called by the state, and testified that he was in the Sunshine Tavern in the early morning of May 29, 1942, and that Gene Ryan and appellant were with him; that they gained an entrance to the tavern by tearing off some boards at the rear of the building, after which they pushed Ryan through; that Ryan then unlocked the door, and appellant and Brehan went inside; that Harmon kept a lookout while the witness and Ryan worked on the safe. The witness further testified that they knocked the combination off with a sledge hammer, drove the spindles out with a punch, and rifled the safe; that each of the three men obtained about $120 in a division of the money taken from the safe. Brehan in his testimony also told how and where the three men met prior to the burglary, and how they watched and waited until the tavern was closed Before attempting to make an entrance.

Brehan also testified that he was in the liquor store the morning of May 30, 1942, and that Ryan and appellant were with him on this occasion. After describing where the three men met and the circumstances of their waiting until the liquor store was closed, Brehan testified that Ryan went up the drain spout and made an entrance through the skylight, went down a rope to the inside of the building, and then opened the door and let appellant and Brehan in; that Brehan and Ryan worked on the safe and again appellant kept watch; that they got a punch stuck in the safe and were never able to effect an entrance. Brehan further testified that appellant and Ryan, without giving him any warning, left while he, Brehan, was working on the safe, and were not in the building when the officers came in and found him.

Brehan was arrested and confined in jail, where he remained for some months Before he could procure bail. At the time of this trial, Brehan had not been tried for his participation in these burglaries. It appears that Brehan had been convicted of two felonies prior to his arrest for the burglaries involved in this action. It also appears that Brehan had been confined some twelve days Before he implicated Ryan and appellant in the burglaries.

Appellant, while on the stand, testified that he took no part in either of these burglaries, and that he was at home on both occasions referred to by Brehan. Appellant also called several witnesses, among them his wife, who testified that appellant was at home on both nights when the burglaries took place.

It also appears, in fact appellant admitted, that he had been convicted of three felonies prior to his arrest in connection with these burglaries. The last felony was a kidnapping charge, and appellant testified that the witness Carriker, to whom we shall later refer, was with him at the time of the kidnapping.

We shall now discuss the first assignment of error, which pertains to the claimed misconduct of the prosecuting attorney. There is nothing in the statement of facts which in any way tends to show that either the proscecuting attorney of Pierce county or any of his deputies ever requested the witness Ryan to claim his constitutional privilege to refuse to testify. It will be remembered that Ryan was first called by the state and at that time refused to testify, on the ground that it might incriminate him. He was thereafter called by appellant, at which time he was informed by the court and by his own counsel (not Mr. Johnson, who represented appellant) of his constitutional rights, and he again refused to testify. The only showing made which tends to sustain appellant's contention upon which this claim of error is based is found in the affidavits of Bertil E. Johnson and Stephen J. O'Brien. These affidavits were sworn to and filed January 29, 1944, and are contained in the transcript on file herein. They were made and filed in support of the motion for new trial; however they are not referred to in the motion, and could not have been referred to, as the motion for new trial was filed January 20, 1944, while the affidavits were filed January 29th.

In State v. Newell, 148 Wash. 82, 268 P. 130, 131, we quoted with approval the following statement from Lee v. Northwest Trust & Savings Bank, 128 Wash. 214, 222 P. 489:

"In addition to this the affidavit in support of the motion for a new trial does not appear in the statement of facts but only in the clerk's transcript. It has been repeatedly held that affidavits of this character, to be considered by us, must be brought here by bill of exceptions or statement of facts properly certified by the trial court."

In State v. Wernitsch, 105 Wash. 224, 177 P. 712, we stated:

'As to the motion for a new trial, it was based upon grounds which required it to be supported by affidavits. It appears that affidavits were used, at least they are found in the record here only in the transcript certified to be the clerk of the trial court. These the respondent moves to strike because they are not embodied in a statement of facts or bill of exceptions certified to by the trial judge. The motion must be granted. Hendrix v. Hendrix, 101 Wash. 535, 172 P. 819.'

There is no question but that...