State v. Jones, 37843

• Decision Date: 24 November 1965
• Docket Number: No. 37843,37843
• Citation: 67 Wn.2d 506,408 P.2d 247
• Parties: The STATE of Washington, Respondent, v. Clarence JONES, Appellant.
• Court: Washington Supreme Court

Page 506

67 Wn.2d 506

408 P.2d 247

The STATE of Washington, Respondent, v. Clarence JONES, Appellant.

No. 37843.

Supreme Court of Washington, en banc.

Nov. 24, 1965.

Peterson, Taylor & Day, Robert S. Day, Pasco, for appellant.

Clarence J. Rabideau, Pros. Atty., Arthur Hansen, Asst. Pros. Atty., Pasco, for respondent.

HALE, Judge.

There was civic turmoil in Pasco on the peaceful banks of the Columbia. A number of law enforcement officials said that gambling and other forms of vice flourished in East Pasco; other officials expressed disbelief. The Attorney General, on request, dispatched investigators. They caused the arrest of Clarence Jones for suffering gambling apparatus--a deck of cards--to be kept in a building occupied by him. Mr. Jones said that he was a cook, and only a cook; that his arrest must have been an after-thought because, when the officers were taking other miscreants off to jail, one of them merely said 'take cookie, too,' and he was thereupon led off to jail with the others. Meanwhile, the Columbia rolled serenely on to the sea.

By information, the prosecuting attorney of Franklin County in count 1, reciting RCW 9.87.010, charged Clarence Jones with vagrancy on August 31, 1963, as a common gambler in a place where gambling was conducted or gambling devices kept. Count 2 refers to RCW 9.47.030 and charges the defendant with possession of gambling devices on August 31, 1963, by permitting them in a building occupied by him. Thus, the information lays two separate and distinct charges against the defendant: (1) vagrancy, and (2) possession of gambling devices.

Both parties agree that at trial the state moved for dismissal of count 1, the charge of vagrancy, which request the court granted, although we find no motion or ruling thereon. From a verdict of guilty entered on count 2, the possession of gambling devices, the defendant appeals.

Before discussing the issues raised by this appeal, we point out several errors in the record which apparently escaped the parties' notice. The state and defendant acknowledge that count 1, the vagrancy charge brought under RCW 9.87.010, was dismissed, yet the judgment and sentence from which the defendant appeals recites, first, that he was informed by the court that the information charged him with 'vagrancy (R.C.W. 9.87.010);' that he was duly convicted of the crime of 'Vagrancy (R.C.W. 9.87.010) Count 1;' and that he was adjudged guilty of the crime of 'Vagrancy (R.C.W. 9.87.010) Count 1.' The warrant of commitment directing the sheriff to execute the sentence by confining the defendant for 180 days likewise recites that the defendant has been duly convicted of the crime of 'Vagrancy (R.C.W. 9.87.010) Count 1.' These errors should be corrected to make the judgment and sentence conform to the proceedings.

The defendant pleaded not guilty to count 2, charging violation of R.C.W. 9.47.030, the statute reading:

'Every person who shall have in his possession or shall permit to be placed or kept in any building or boat, or part thereof, owned, leased or Occupied by him, any table, slot machine, or any other article, device or apparatus of a kind commonly used for gambling, or operated for the losing or winning of any money or property, or any representative of either, upon any chance or uncertain or contingent event, shall be guilty of a gross misdemeanor.' (Italics ours.)

Chief among the points raised by appellant's assignments of error is whether the evidence sufficiently proved a crime denounced by the statute. Appellant argues from the evidence that he was and is a cook by occupation; that he had never been convicted of a crime or had any run-ins with the law; and that he had been working as a cook for weekly wages at Bobbie & Ray's Cafe in East Pasco for about two months when the place was raided by the sheriff's deputies and Attorney General's investigators. On verbal direction from C. O. Rolfson, one of the investigators, to 'take cookie, too,' he found himself in jail facing charges of vagrancy and complicity in gambling.

Mr. Jones testified that he had no partnership in, rights to profits from, or ownership concerning operation of Bobbie & Ray's Cafe, and that the cafe was operated, controlled and owned by his employer, Ray Walker. He said no one ever asked his permission to gamble on the premises, and if any gambling took place he was not privy to it. He was, he said, exclusively a cook--opening the cafe at 4 p.m. each day and keeping it open for business as only a cafe until approximately 2 a.m.

Did the state submit sufficient proof prima facie in its case in chief that Mr. Jones permitted a gambling device, or apparatus used commonly for gambling, to be placed or kept in any building owned, leased, or occupied by him? To test sufficiency of the evidence, we limit it to the following evidence, and omit conversations taking place at the jail following defendant's arrest.

The state called Mr. Ken Latcholia who identified himself as an investigator from the State Attorney General's office. He testified that on August 31, 1963, when he entered Bobbie & Ray's Cafe in East Pasco, he observed Mr. Jones to his left behind the counter serving coffee. He said that, as one walks into the cafe, the food service counter stands to the left while across from it and to the right are several booths and a jukebox. Toward the rear of the main room is another room with several booths against the wall. A blanket had been spread on the table in one of the booths in the rear room and on it were cards and money. Mr. Latcholia said that a Mr. Traylor, seated in the booth, asked him to play blackjack. He agreed, and the game started at 25 cents a hand, but they soon raised the stakes to 50 cents. Mr. Latcholia said that he played blackjack with Traylor for 25 or 30 minutes--long enough to lose $10 to him.

During the blackjack game, a Mr. Treglown, likewise an investigator from the Attorney General's office, stood by and observed. While watching the play, Mr. Latcholia heard Mr. Treglown order a cup of coffee from Mr. Jones and saw the latter serve the coffee at the booth adjacent to the one in which the game was in progress.

John Treglown corroborated Latcholia's account. He said that he entered Bobbie & Ray's Cafe with Mr. Latcholia, his fellow investigator, and that he watched the card game involving Traylor and Latcholia. He said that, while the card game went on, 'the defendant was serving food in the establishment, and was walking back and forth and generally running the establishment. He appeared to be the man in charge of the establishment.' He said that, when he and Latcholia entered and walked toward the back booth, he observed a card game in progress on the blanketed table between Traylor and another individual. Treglown related that, when Traylor invited Latcholia to play blackjack, the other fellow left the table and Latcholia sat down at it and began to play blackjack with Traylor. On the blanket he noticed some dollar bills, quarters, smaller change and, as he expressed it, quite a stack of 50 cent pieces.

Treglown said that several times during the game the defendant went to the refrigerator just across the aisle from where the card game was in progress, and on one of these trips to the refrigerator he ordered a cup of coffee from defendant. He said that defendant served the coffee in the booth adjacent to the card game, and that the game was in the direct sight of the defendant on each of his trips to the refrigerator and when serving him the coffee.

Mr. C. O. Rolfson, chief investigator for the Attorney General's office, said that he entered Bobbie & Ray's Cafe during the early morning...