State v. Lindsey, 26824.

• Decision Date: 26 November 1937
• Docket Number: 26824.
• Citation: 73 P.2d 738,192 Wash. 356
• Parties: STATE v. LINDSEY et al.
• Court: Washington Supreme Court

73 P.2d 738

192 Wash. 356

STATE v. LINDSEY et al.

No. 26824.

Supreme Court of Washington

November 26, 1937

Department 1.

Appeal from Superior Court, Spokane County; John A. Frater, Judge.

E. R Lindsey and Elbert B. Lindsey were convicted of first degree forgery, and they appeal.

Affirmed.

E. R. Lindsey, of Spokane, for appellants.

Ralph E. Foley, Pros. Atty. and C. C. Quackenbush and Leslie M Carroll, Deputy Pros. Attys. all of Spokane, for the State.

HOLCOMB Justice.

Appellants were found guilty after a trial by the court and a jury of first degree forgery. The charging part of the information reads:

'That the said defendants, E. R. Lindsey and Elbert B Lindsey, in the County of Spokane, State of Washington, on or about the 17th day of April, 1935, then and there being, did then and there wilfully, knowingly, falsely, fraudulently unlawfully and feloniously utter and put off as true to F. E. Davis a certain false and forged writing, to-wit: the signature of R. A. Jacobs on an instrument in writing commonly known as a note in words and figures as follows:

'$10,200

'April 2, 1935 19__

30 days after date we promise to pay to the order of L. M. Davenport ten thousand and two hundred Dollars at Guarantee Trust Bank of Chicago

Value received,

No. 34

p>Page

R. A. Jacobs Asst. Cashier.'

Due May 2, 1935

and that the said defendants, E. R. Lindsey and Elbert B. Lindsey, then and there being, did then and there well know the said instrument of writing to be false and forged, and the same was then and there uttered and published by the said E. R. Lindsey and Elbert B. Lindsey with the intent then and there to injure and defraud the said F. E. Davis and other persons now unknown.'

The jury found both appellants guilty as charged on June 11, 1937. Motions by appellants in arrest of judgment were denied on the same day. Both were sentenced on July 10, 1937, for indeterminate terms of not less than 4 years and not more than 20 years to run concurrently with the terms in another case which had been numbered 11400 in that court and tried by the same judge.

No testimony was offered by appellants in their defense. The evidence is therefore conclusive and all of it has been read. It is unnecessary to recite the evidence for it was not only competent but conclusive.

The record shows a preposterous scheme to defraud anyone who would, for any sum from $200 to $500, purchase a spurious draft or note for $10,200 drawn to L. M. Davenport, principal owner of the Davenport Hotel in Spokane, as payee, allegedly given April 2, 1935, and drawn as payable at the Guarantee Trust Bank of Chicago by R. A. Jacobs, assistant cashier. The evidence is undisputed that there is no such bank in Chicago and R. A. Jacobs, assistant cashier, is therefore a mythical person and an imaginary officer. The paper was so offered to F. E. Davis and to two others.

Manifestly, L. M. Davenport would not be liable upon such a forged instrument.

The evidence also conclusively shows that both appellants acted in concert throughout in the attempt to obtain this money unlawfully. Those facts effectively dispose of appellants' assignment No. 4, somewhat out of order, that the court erred in denying their motions for a dismissal, challenge to the evidence, and in not granting their motions for a new trial on the ground that the verdict is contrary to the evidence.

Appellants first contend that the court erred in denying their motions to suppress evidence, namely, the so-called note on which the prosecution is founded, on the ground that the use of that exhibit by the State under the circumstances by which the State obtained it is a violation of the rights, privileges, and immunities guaranteed to them and each of them by article 1,§§ 7 and 9, protection from unlawful search and seizure and from self-incrimination, and article 1, § 23, prohibiting ex post facto laws, of the Washington Constitution.

In connection with this contention it is argued that the arrest of appellants was illegal because made without a warrant and the evidence taken from the persons of appellants under such an unlawful arrest could not be used in evidence.

The evidence conclusively shows that police officers of Spokane were informed of the attempt by appellants to utter and pass this spurious paper. On being so informed two of them went to the Spokane Hotel in Spokane where the elder Lindsey then was and at that time and place was attempting to negotiate the instrument for a small sum of $200 or $300 to one Patterson. The officers therefore knew that this felony was attempted or about to be committed and one of them so testified.

It has always been the law in this State that arrests may be made by a police officer without a warrant when they have reason to believe that a felony is about to be committed or attempted or has been committed. State v. Symes, 20 Wash. 484, 55 P. 626; State v. Hughlett, 124 Wash. 366, 214 P. 841; State v. Dillon, 155 Wash. 486, 284 P. 1016; State v. Cohn, 155 Wash. 644, 285 P. 665; State v. Bantam, 163 Wash. 598, 1 P.2d 861. The same general principles are laid down as universally recognized in 5 C.J. 398, §§ 28, 29, and 30.

The arrest being lawful the right to search the person of the accused and the admissibility of the evidence of such articles so found are beyond question. State v. Britton, 137 Wash. 360, 242 P. 377, 247 P. 9; State v. March, 156 Wash. 403, 287 P. 57; State v. Thomas, 183 Wash. 643, 49 P.2d 28. Hence, there is no merit in that contention.

The second assignment of error is based on the refusal of the trial court to give appellants' oral request of a more elaborate instruction on the question of intent. The trial court gave two valid instructions on the question of intent in the last of which he charged: 'You are instructed that with reference to the matter of 'intent', direct and positive testimony is not necessary for the proof of the intent required to be found in...