State v. Jack, 36612

• Decision Date: 23 January 1964
• Docket Number: No. 36612,36612
• Citation: 388 P.2d 566,63 Wn.2d 632
• Parties: The STATE of Washington, Respondent, v. Arthur Dale JACK, Allan Grant Williams, Donald Wayne Lunceford and Robert Peter Erickson, Appellants.
• Court: Washington Supreme Court

Page 632

63 Wn.2d 632

388 P.2d 566

The STATE of Washington, Respondent, v. Arthur Dale JACK, Allan Grant Williams, Donald Wayne Lunceford and Robert Peter Erickson, Appellants.

No. 36612.

Supreme Court of Washington, Department 2.

Jan. 23, 1964.

As Amended Feb. 21, 1964.

Rehearing Denied April 3, 1964.

Walter R. Rodgers, III, Philip S. Brooke, Jr., Joseph J. Stangle, Spokane, for appellants.

Willard A. Zellmer, Pros. Atty., Roger H. Underwood, Deputy Pros. Atty., Davenport, for respondent.

FINLEY, Judge.

The appellants herein were charged and convicted of grand larceny in the Superior Court of Lincoln County. The case involves an alleged theft of two semi-trailer truckloads of wheat from the Wheatridge Grain Elevator, located in a sparsely populated area and at an isolated spot on State Highway 4-B approximately thirteen miles south of Wilbur, Washington.

The assignments of error in this appeal raise the following questions:

(1) Whether there was probable cause justifying the arrest of appellants Williams, Lunceford and Jack;

(2) Whether there was probable cause justifying the arrest of appellant Erickson;

(3) Whether the state's evidence was sufficient (a) to resist defense motions to dismiss, for a directed verdict and for arrest of judgment and for a new trial, and (b) to support a verdict of guilty by the jury as to each appellant;

(4) Whether the trial court erred in limiting the time of all three defense counsel to a total of one hour, or twenty minutes each, respecting argument to the jury in behalf of their respective clients.

The facts which reasonably can be adduced from the record are as follows: Employees of the Wheatridge Grain Elevator, upon checking and measuring the amount of grain on hand, determined that substantial amounts were missing during a period including the last several days of July to August 6, 1961. Theft of the wheat by unknown parties from the isolated and unguarded Wheatridge Elevator was suspected. Charles Smith, a retired police officer of the town of Wilbur, Washington, was employed as a night watchman and guard by the Llewellyns, owners and operators of the Wheatridge Elevator. Smith was on duty August 6 through August 11 at the Wheatridge Elevator from 9:00 p.m. until about 5:00 a.m. On the night of August 10, or the morning of the 11th, Smith concealed himself in a nearby field of stubble and kept watch on the grain elevator. At about 1:30 a.m., he saw a long car stop alongside the elevator. Only its parking lights were turned on. Two men got out. They carefully inspected the elevator premises. While one man entered the building, the other remained outside and turned a flashlight on the grain-loading spouts of the elevator. From the beam of the flashlight the man's face was briefly revealed, thus enabling Officer Smith later to recognize and identify the man as appellant Arthur Dale Jack. The night was too dark for Officer Smith to identify the long car by color, model, or make. He observed the two men re-enter the car and drive away in the direction of Wilbur without turning on the headlights until they were some distance from the elevator. Around 2:45 or 3:00 a.m., an automobile (thought by Smith to be the same one), again with only its parking lights on, appeared and parked alongside the Wheatridge Elevator. It was followed immediately by a semi-trailer truck with a wheat rack. The truck drove under the middle spout on the east side of the elevator, and Officer Smith then heard grain running into the truck. Although it was too dark for Officer Smith to identify the men, or to identify the truck, he kept watch as closely as possible and saw the truck moved forward at short intervals to distribute the grain evenly in the truck bin. A second semi-trailer truck, with no lights on, pulled in behind the first, moved under the elevator spout as the first truck left in the direction of Odessa, Washington, on State Highway 4-B. The motors of both trucks were kept running while the loading was taking place. About the time the second truck pulled under the spout, Officer Smith was able to enter the elevator building unobserved and make a telephone call to advise the owners, the Llewellyns, of the situation at the grain elevator. He remained in the building until the second truck and scout car pulled away from the elevator in the direction of Odessa. At the trial Smith stated that he was surprised that the loading of the trucks occurred so quickly--in what to him seemed to be about fifteen or twenty minutes. Upon receiving Smith's message, the Llewellyns dressed quickly and drove at a high rate of speed from Wilbur to the site of the Wheatridge Elevator. Smith testified that they arrived shortly after the second truck had left in the direction of Odessa. The scout car had turned back in the direction of Wilbur. It was seen by the Llewellyns as they were en route to the Wheatridge Elevator, and was recognized by them as a red station wagon occupied by two men.

After reaching the elevator and picking up Officer Smith, the Llewellyns gave immediate chase to the trucks heading south on Highway 4-B toward Odessa. An employee was left at the elevator to notify the sheriff of Lincoln County and inform him of the direction of the chase.

Approximately eight miles down the highway, the Llewellyns and Smith sighted the lights of what appeared to be a truck ahead of them by several miles. These lights were kept in sight until the vehicle was overtaken some fourteen miles south of the Wheatridge Elevator. As the pursuers pulled up behind the vehicle (which proved to be a semi-trailer truck equipped with a tarpaulin-covered wheat rack), the elder Llewellyn fired a shotgun at the left rear wheels of the trailer, and then, as the pursuers pulled partially alongside the fleeing truck, he fired at the left rear wheel of the truck itself. Surprisingly and perhaps fortunately for all concerned, the tires were not blown off. Subsequently, one tire deflated. In any event, the truck stopped immediately. Its driver, appellant Williams, and his companion, appellant Lunceford, were ordered from the truck at gunpoint under a threat of being 'cut down.' They were handcuffed by Officer Smith and told they were under arrest for theft of the load of wheat. Neither Williams nor Lunceford would make any comment or statement concerning the wheat, its ownership or their possession of it.

Williams and Lunceford were ordered to lie, face down, by the side of the road to await the arrival of the sheriff. Shortly thereafter, a red Ford station wagon (which the Llewellyns recognized as the one which they had seen en route from Wilbur to the elevator) drove up and stopped behind the halted truck. The two occupants were ordered from the car, again at gun point. Appellant Jack was recognized by Smith as the man whose face he had seen reflected by the flashlight earlier that night at the elevator. Jack and the other occupant, Walker, ¹ were told that they were under arrest in connection with the wheat...