State v. Mallory
| Decision Date | 13 October 1966 |
| Docket Number | No. 38013,38013 |
| Parties | STATE of Washington, Respondent, v. Harold Allen MALLORY and Norman Lee Mallory, Appellants. |
| Court | Washington Supreme Court |
Clarence H. Fidler, Port Angeles, for appellants.
Nathan G. Richardson, Pros. Atty., Port Angeles, Paul E. Froude, Deputy Pros. Atty., for respondent.
This is an appeal by two brothers from the separate judgments and sentences entered upon their respective convictions on two counts of second-degree burglary. Each appellant waived a jury trial and the case was tried to the court. At the end of the trial, after both sides had rested, the trial court denied a motion for dismissal on the ground of insufficiency of the evidence and rendered an oral opinion in which the trial court stated its reasons for finding appellants guilty of the charges contained in the amended information.
After argument on appellants' motion for a new trial, the trial court denied the motion and rendered a written memorandum opinion in which the trial court explained why, in its opinion, the evidence was sufficient to convict appellants of the two counts charged in the amended information.
The judgment and sentence was entered as to each appellant on November 24, 1964, finding each guilty on each count of burglary in the second degree and sentencing each appellant to confinement in the state reformatory for a maximum period of 15 years, these sentences to run concurrently. On the same day, both appellants filed a joint notice of appeal to this court from their respective sentences.
Appellants have made the following assignments of error.
(1) Count One of the information against both defendants should have been dismissed as the State failed to produce prima facie proof of a corpus delicti without which a prima facie case was not established against defendants.
(2) There was insufficient evidence to enable the court to find that the defendants were guilty beyond a reasonable doubt of Count Two of the information.
The principal arguments of appellants are phrased in terms of the insufficiency of the evidence to 'make a prima facie case' (i.e. to support a finding as to the elements of the crimes) for which appellants were convicted.
Appellants, in their arguments in support of their appeal, refer to the oral opinion and the memorandum opinion of the trial court. These may be considered in interpreting the findings of fact and conclusions of law, but they cannot be considered as the basis for the trial court's judgment and sentence. A trial court's oral or memorandum opinion is no more than an expression of its informal opinion at the time it is rendered. It has no final or binding effect unless formally incorporated into the findings, conclusions and judgment. See Ferree v. Doric Co., 62 Wash.2d 561, 383 P.2d 900 (1963); Clifford v. State, 20 Wash.2d 527, 148 P.2d 302 (1944).
With regard to count 1, the trial court found, upon conflicting evidence, that two burglaries had been committed at the Port Angeles Senior High School--one in September, 1960, and the other on April 11, 1962 (which was charged in count 1). Appellants contended at the trial that they had been punished as juveniles for the 1960 burglary, and that there was a failure of proof by the state of the corpus delicti of the alleged 1962 burglary of the high school.
The findings made by the trial court as to the participation of appellants in the 1962 burglary are as follows:
II. The defendant, Norman Lee Mallory, and one Glenn Romberg were involved in one of the burglaries. The High School admittedly was burglarized again in 1962, and in one of these burglaries of...
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