State v. Humphreys

• Decision Date: 23 January 1922
• Docket Number: 16667.
• Citation: 203 P. 965,118 Wash. 472
• Court: Washington Supreme Court
• Parties: STATE v. HUMPHREYS.

203 P. 965

118 Wash. 472

STATE v. HUMPHREYS.

No. 16667.

Supreme Court of Washington

January 23, 1922

Department 1.

Appeal from Superior Court, Whitman County; R. L. McCroskey, Judge.

Fred Humphreys was convicted of grand larceny, and he appeals. Affirmed.

J. N. Pickrell, Hanna, Miller & Hanna, and F. L Stotler, all of Colfax, and S. J. Chadwick and Hugh C. Todd both of Seattle, for appellant.

G. A Weldon and W. L. La Follette, Jr., both of Colfax, for the State.

MITCHELL J.

The defendant was charged with the grand larceny of 10 sacks of wheat belonging to R. B. Terrell. The jury found him guilty, and from a judgment on the verdict an appeal has been taken.

The evidence shows the wheat was stolen. It was raised on a farm belonging to H. W. Hanford, rented on shares by Terrell. It was stolen on the night of August 25, 1920, from the field in which it had been lately threshed, near a public road. The theft was discovered on the morning of August 26. Terrell noticed the tracks of an automobile from the highway to the place from which the wheat was taken; thence back into the highway and onto the premises of the appellant. There were distinguishing features of the automobile tracks. The owner and the deputy sheriff at once went upon the premises of the appellant and found 10 sacks of wheat, corresponding to that stolen, in appellant's barn. They called his attention to the wheat which was examined by them at that time. The three of them went to the field from which the wheat had been stolen; examined the tracks of the automobile at that place and again at the place of leaving the highway to go to the barn. The deputy sheriff and Terrell testified they examined the tires of the automobile, and that they matched the tracks spoken of. They or other witnesses for the prosecution testified that he admitted he was in the car that made the tracks. They testified the appellant was told he had better take the wheat back, and that he said he would but that the neighbors would accuse him of being a wheat thief. There is testimony to show that the wheat was removed from appellant's barn the night of the 26th of August or the next morning, by whom it is not shown. There is evidence to show that on the morning of August 27 upon appellant's going to the sheriff's office and upon having read to him an arrest warrant which had been sworn out he admitted the wheat found in his barn was not his and that he said, 'I don't want any publicity; I would like to get this thing settled up.' He first offered to pay for the wheat and then offered to return it. It appears the latter was agreeable to Terrell at first, but appellant failed to return the wheat at the appointed hour, and thereafter Terrell refused to accept a return of it without the consent of his landlord. Accordingly Terrell and the appellant went to see Hanford, at which time appellant stated he could not afford to let the matter get out and wanted to pay for the wheat and for Terrell's time. Upon fixing upon the amount and while considering the situation Hanford telephoned the sheriff's office and thereupon informed the appellant 'it was too late; that he would have to make his case before the court.' There were other incriminatory facts and circumstances in the case that need not be mentioned. It may be stated that the defendant at the trial denied many of the damaging admissions attributed to him, although he did admit there were conversations between him and witnesses for the prosecution at the times and places mentioned, that he did say rather than have the expense and publicity of a trial he would pay for the wheat, and that he told them he was in the automobile from the highway to the barn on his premises, the latter being a trip, as he testified, to care for a sick horse at the barn on the evening of August 25.

The first assignments of error relate to the court's permitting the witness Hanford to testify, over appellant's objections, and then refusing to strike the testimony after it was given, to the effect that he told appellant he (Hanford) had nothing to fix up, that he was not selling wheat, and that he had been robbed three times out there, and that he wanted this one run down. The claim is that the testimony was irrelevant and prejudicial and so remotely removed from the scene and time of the theft as not to be a part of the res gestae. Clearly it was not offered as a part of the res gestae. The witness was called to prove that appellant had voluntarily gone to him and offered to pay for the wheat. His conduct and offer were in the nature of an admission, and the language objected to was but the answer to the offer appellant was making and was spoken at the very time and occasion of the offer being made, and was therefore admissible.

Assignment No. 3, that the court erred in denying appellant's motion for a directed verdict at the close of the evidence for the state, is not supported by any argument, and is, we think, without merit.

Assignment of error No. 4 Claims misconduct on the part of the prosecuting attorney (1) in language used in the cross-examination of the appellant, and (2) improper argument in debating the case to the jury. As to the first the appellant contented himself at the time of the question on cross-examination to the objection that it was improper cross-examination, which objection was promptly sustained by the court. The question was not answered. As to the second the language used expressed the speaker's opinion of the guilt of the accused. Promptly the court was appealed to with the objection that it was prejudicial and a request that counsel be admonished. The objection was sustained, counsel was admonished, and the jury at once...