State v. Higgins

• Decision Date: 21 October 1965
• Docket Number: No. 37589,37589
• Citation: 406 P.2d 784,67 Wn.2d 147
• Court: Washington Supreme Court
• Parties: The STATE of Washington, Respondent, v. Robert HIGGINS, Appellant.

Page 147

67 Wn.2d 147

406 P.2d 784

The STATE of Washington, Respondent, v.Robert HIGGINS, Appellant.

No. 37589.

Supreme Court of Washington, Department 2.

Oct. 21, 1965.

Bernard L. Swerland, Seattle, for appellant.

George A. Kain, Donald C. Brockett, Deputy Pros.Atty., Spokane, for respondent.

WARD, Judge.^*

The defendant, Robert Higgins, was convicted in justice court, Spokane District, of the crime of defrauding an innkeeper.On appeal, he was again found guilty by a jury in the superior court, and now appeals to this court from the judgment and sentence imposed.

Defendant challenges the sufficiency of the evidence to support conviction.The evidence established and the defendant, by his counsel, admitted that he and his wife were guests at the Devenport Hotel in Spokane from July 21, 1962, until August 1, 1962.The proof of the remaining facts in the case came from the hotel records admitted in evidence under the provisions of the Uniform Business Records as Evidence Act, RCW 5.45.020, and from the testimony of the hotel's cashier and auditor, who had each prepared a part of such records and both of whom testified to the correctness and the manner of keeping such records.No challenge was made to the authenticity of the hotel's records nor to their admissibility under the Uniform Act.

The hotel maid makes a daily written report to the cashier showing which guests have vacated rooms assigned to her care.The cashier makes a daily entry of the guest's charges for room occupancy based upon the maid's report.When the report indicates that a guest has vacated his room, if the guest has neither paid his account nor signed the ledger account at the place on the card providing for extension of credit under American Express or Western International Hotels credit cards, the cashier marks the card FTCO (failed to check out) and the next day delivers the guest's account to the hotel auditor for collection.

In this case, the defendant's ledger card was marked FTCO on August 1, 1962.The card also carries the notation 'Bag at Porter's Desk (worthless)'.The balance then owing on the defendant's hotel account was $186.26.The hotel auditor then mailed a statement of the defendant's account addressed to him at 803 Weatherby Building, Portland, Oregon, the address written by the defendant upon his registration card on July 21, 1962.This mail was returned to the Davenport Hotel, unclaimed, bearing the stamp 'Unknown at this address.'

The justice court complaint charging the defendant with the crime of defrauding an innkeeper was filed 9 months later.The defendant testified in justice court, but neither he nor his wife was called as a witness at the trial in superior court.

The statute under which the defendant was charged, RCW 19.48.110, contains this language:

Any person who shall wilfully obtain food, * * * lodging or accommodation at any hotel, * * * without paying therefor, with intent to defraud the proprietor, owner, operator or keeper thereof * * * shall be guilty of a gross misdemeanor.* * * Proof that * * * he or she absconded, or departed from, or left, the premises without paying for such * * * lodging or accommodation, * * * shall be prima facie evidence of the fraudulent intent hereinbefore mentioned.

The facts above set out, which the jury had a right to believe, together with the statutory presumption of fraudulent intent, based upon the guest's departure without payment for hotel accommodations received, were sufficient to support the jury's verdict.

The defendant contends that the state has failed to prove his guilt beyond a reasonable doubt.A challenge to the sufficiency of the evidence imposes upon the trial court only the duty to determine whether the evidence is sufficient to carry the case to the jury.The challenge is met if the court finds substantial evidence to support all elements of the crime charged.State v. Cranmer, 30 Wash.2d 576, 192 P.2d 331(1948).If the evidence is conflicting so that reasonable minds may draw different conclusions therefrom, the question is one for the jury's determination.State v. Emmanuel, 49 Wash.2d 109, 298 P.2d 510(1956);State v. McDaniels, 30 Wash.2d 76, 190 P.2d 705(1948).The jury must be instructed that in order to convict they must find from the evidence submitted the defendant's guilt beyond reasonable doubt.There inheres in the jury's verdict of guilty a finding that the jury determined the evidence sufficient when so measured.State v. Long, 44 Wash.2d 255, 266 P.2d 797(1954).

The defendant attacks the constitutionality of the statutory presumption in RCW 19.48.110, which permits the jury to find intent to defraud from the guest's departure without payment for his hotel accommodations.It is defendant's contention that this statutory presumption is arbitrary and requires no rational connection between the fact proven and the fact to be presumed, in contravention of the due process clause of the U.S. Const. Fourteenth Amendment.

In City of Seattle v. Ross, 54 Wash.2d 655, 659, 344 P.2d 216(1959), we said:

It is well established that a legislative body may create a presumption of one fact from evidence of another having a rational connection therewith, without a denial of due process or equal protection of the law.State v. Spiller, 146 Wash. 180, 262 P. 128;State v. Fitzpatrick, 141 Wash. 638, 251 P. 875;Yee Hem v. United States, 268 U.S. 178, 45 S.Ct. 470, 69 L.Ed. 904.But, as Mr. Justice Roberts, in Tot. v. United States, 319 U.S. 463, 63 S.Ct. 1241, 1245, 87 L.Ed. 1519, in speaking for the court said:

'* * * a statutory presumption cannot be sustained if there be no rational connections between the fact proved and the ultimate fact presumed, if the inference of the one from proof of the other is arbitrary because of lack of connection between the two in common experience.This is not to say that a valid presumption may not be created upon a view of relation broader than that a jury might take in a specific case.But where the inference is so strained as not to have a reasonable relation to the circumstances of life as we know them it is not competent for the legislature to create it as a rule governing the procedure of courts.'

In Barrett v. United States, 322 F.2d 292(5th Cir.1963), the court held unconstitutional a presumption contained in the Internal Revenue Code relating to illegal distilling, 26 U.S.C.A. § 5601(b)(4), which provides that the presence of defendant at the site of an unregistered still 'shall be deemed sufficient evidence to authorize conviction, unless the defendant explains such presence to the satisfaction of the jury.'

The Circuit Court of Appeals held this presumption, in effect, coerced the defendant into taking the witness stand in violation of his rights under the provision of the Fifth Amendment that 'No person * * * shall be compelled in any criminal case to be a witness against himself.'The court said: 'A person accused of a crime has more than the right to present evidence in his defense.He has the constitutional right to sit on his hands.'

The Circuit Court of Appeals also held that the presumption violated the due process clause of the Fourteenth Amendment because the presumption did not meet the test of 'rational connection' between defendant's presence at the still and his guilt.

However, this case came before the ...