State v. Lewis
| Decision Date | 18 February 1960 |
| Docket Number | No. 35213,35213 |
| Citation | 349 P.2d 438,55 Wn.2d 665 |
| Parties | STATE of Washington, Plaintiff, v. William LEWIS, Defendant and Relator, Superior Court of State of Washington for King County, Henry Clay Agnew, Judge, Respondent. |
| Court | Washington Supreme Court |
Alan L. Froelich, Seattle, for relator.
Charles O. Carroll, Pros. Atty., Anthony Savage, Jr., Deputy Pros. Atty., Seattle, for respondent.
By this application for a writ of certiorari in forma pauperis, the relator seeks review of the trial court's refusal to furnish a statement of facts at public expense, in accordance with the procedure set forth in Woods v. Rhay, Wash., 338 P.2d 332.
The relator, after a jury trial, was found guilty of illegal possession of narcotics. At the trial he was represented by counsel of his choice. Thereafter, the same attorney was appointed by the trial court to represent the relator for the purpose of seeking an appellate review of his conviction and to obtain the statement of facts at public expense.
The relator in his motion for a statement of facts 1 set forth the following:
'* * * An instruction given by the Court, which was not objected to by the prosecution, stated as follows: 'It is not sufficient that the proved circumstances merely be consistent with the theory of guilt; they must be irreconcilable with innocence in order to justify conviction.'
'It is the belie[f]ve of affiant and Defendant that these facts should be subjected to an appellant review in light of the law of the case that the circumstance must be irreconcilable with any theory of innocence.'
The trial court denied the relator's motion for a statement of facts at public expense by a formal order based upon a memorandum opinion. All parties desire and are willing that this court consider the memorandum opinion as a finding of fact for the purpose of this review. The pertinent part of the trial court's memorandum opinion or 'finding' is as follows:
'There is no doubt of the defendant being indigent and entitled to a statement of facts at the expense of the county if such is necessary and if the defendant has any honestly debatable assignment of error. I find the present application to be frivolous. It undertakes to challenge the sufficiency of the evidence to justify the verdict without in any way showing any insufficiency or specifying the same with any particularity.
'It is not sufficient that the proved circumstances merely be consistent with the theory of guilt; they must be irreconcilable with innocence in order to justify a conviction.'
'Two police officers testified. One of them testified that at the time of defendant's arrest he threw away a small package which fell under a stairway, and that he, having to hold the defendant, asked his partner to look for the package and get it. This his partner did and it turned out to be narcotics. The officer who picked up the package testified to the same set of circumstances. They both testified that the defendant for a short time denied that the narcotics were his or that he threw any package. He later freely admitted that he had done so and offered to cooperate in obtaining a buy from the man who had sold him the narcotics.
Defendant was released for this purpose agreeing to meet the officers at a certain time and place. Instead of doing so, the defendant took a change of venue to Florida. The defendant put in no testimony and the jury seemed to take the undisputed testimony of the officers as true, very promptly finding the defendant guilty.'
The relator's counsel in his argument before this court (reproduced by tape recorder on which all oral arguments are taped), when asked whether or not Judge Agnew's memorandum opinion was correct, answered as follows:
And when asked whether the appeal was frivolous, answered:
The issue presented is whether the cases of Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891, and Eskridge v. Washington State Board of Prison Terms & Paroles, 357 U.S. 214, 78 S.Ct. 1061, 2 L.Ed.2d 1269, require that a statement of facts must be furnished at public expense to an indigent defendant where reasonable minds cannot differ that the appeal, for which the statement of facts is requested, is frivolous.
The error alleged to have occurred and upon which the relator relies for his appeal, is conceded to be frivolous and is in fact devoid of any merit.
The question whether circumstantial evidence tending to connect the accused with the crime charged excludes, to a moral certainty, every other reasonable hypothesis than that of guilt, is a question for the jury, and not for the court, when the evidence, although circumstantial, is legally sufficient to take the case to the jury. State v. Gillingham, 33 Wash.2d 847, 207 P.2d...
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