State v. McGonigle

• Decision Date: 06 July 1927
• Docket Number: 20501.
• Citation: 144 Wash. 252,258 P. 16
• Parties: STATE v. McGONIGLE et al.
• Court: Washington Supreme Court

258 P. 16

144 Wash. 252

STATE v. McGONIGLE et al.

No. 20501.

Supreme Court of Washington

July 6, 1927

Department 2.

Appeal from Superior Court, King County; Hall, Judge.

Information charging C. W. McGonigle and another with conspiring to violate Laws 1921, p. 156. From an order and judgment dismissing the prosecution, the State appeals under Laws Ex Sess. 1925, p. 423, § 2183-1. Affirmed.

Ewing D. Colvin and James M. Bailey, both of Seattle, for appellant.

Poe Falknor, Falknor & Emory, Herbert B. Butler, and Marion A Butler, all of Seattle, for respondents.

HOLCOMB J.

This is an appeal by the state from an order and judgment dismissing a prosecution, under section 2183-1, Laws of Extraordinary Session of 1925, p. 423. Upon an information filed May 28, 1925, charging respondents of the crime of conspiracy to violate the Alien Land Law, respondents were adjudged guilty. Such proceedings were had in the court below, in a second trial, as resulted in the dismissal of the prosecution upon the motion of respondents, for the reason that the evidence was insufficient to sustain a conviction against either or both of the respondents.

The information charges respondents with, on or about January 1, 1924, and including May 25, 1925, unlawfully and fraudulently confederating, conspiring, and combining with one another to evade and violate the provisions of chapter 50, Laws of 1921, of this state, in that defendant Namba, being an alien, to wit, a subject of the Empire of Japan and of the Japanese race, he desiring unlawfully to secure for himself the right to the control, possession, use, employment, issues, profits, and the right to the benefits of certain lands located in King county, state of Washington (then describing 11 lots in a certain block in Hillman's Pacific City, Division No. 6, in that county), which land is agricultural land and used and capable of being used for agricultural purposes, did willfully and unlawfully conspire, combine, and confederate with the defendant McGonigle to secure the control, possession, use, enjoyment, issues, profits, and rights to the benefits of the land described, the defendant McGonigle at all times mentioned well knowing that defendant Namba was an alien, being a subject of the Empire of Japan, and that he had not in good faith declared his intention to become a citizen of the United States.

The showing attempted to be made at the two trials of the prosecution by the state was that respondents conspired to evade or violate the Alien Land Law by having what amounted to some kind of a lease between them to the land in question.

The statute under which respondents were prosecuted reads as follows:

Section 10582, Rem. Comp. Stat.:

'An alien shall not own land or take or hold title thereto. No person shall take or hold land or title to land for an alien. Land now held by or for aliens in violation of the Constitution of the state is forfeited to and declared to be the property of the state. Land hereafter conveyed to or for the use of aliens in violation of the Constitution or of this act shall thereby be forfeited to and become the property of the state.'

Section 10581, Rem. Comp. Stat., is in part as follows:

'In this act, unless the context otherwise requires, '(a) 'Alien' does not include an alien who has in good faith declared his intention to become a citizen of the United States, but does include all other aliens and all corporations and other organized groups of persons a majority of whose capital stock is owned or controlled by aliens or a majority of whose members are aliens;

'(b) 'Land' does not include lands containing valuable deposits of minerals, metals, iron, coal or fire clay or the necessary land for mills and machinery to be used in the development thereof and the manufacture of the products therefrom, but does include every other kind of land and every interest therein and right to the control, possession, use, enjoyment, rents, issues or profits thereof except a mortgage and except a right to the possession, use or enjoyment of land for a period of not more than ten years for a purpose for which an alien is accorded the use of land by a treaty between the United States and the country whereof he is a citizen; * * *

'(d) To 'own' means to have the legal or equitable title to or the right to any benefit of;

'(e) 'Title' includes every kind of legal or equitable title; * * *

'(j) 'Person' includes an individual, partnership, corporation or any other organized group of persons.'

The statute defining 'conspiracy' (section 2382, Rem. Comp. Stat.) is as follows:

'Whenever two or more persons shall conspire----

'(1) To commit a crime; or * * *

'(7) To accomplish any criminal or unlawful purpose, or to accomplish a purpose, not in itself criminal or unlawful, by criminal or unlawful means;

'Every such person shall be guilty of a gross misdemeanor.'

It will be noted that in the definition of 'land' in the above-quoted law it is provided that land includes 'every other kind of land [having previously excepted some] and every interest therein and right to the control, possession, use, enjoyment, rents, issues or profits thereof except a mortgage and except a right to the possession, use or enjoyment of land for a period of not more than ten years for a purpose for which an alien is accorded the use of land by a treaty between the United States and the country whereof he is a citizen.' It is also provided that to 'own' means to have the legal or equitable title to or the right to any benefit of.

Under the conspiracy statutes it is necessary to allege and prove that at least two persons conspired to commit a crime or to accomplish any criminal or unlawful purpose, so far as this prosecution is concerned.

Appellant attempted to substantiate the allegations of its information by introducing evidence to the effect that the land in question, a small garden tract, was agricultural land consisting of the above-described lots, which are located in Algona, King county; that the legal title to the land in question stood in the name of respondent McGonigle. He purchased it from a realty company in April, 1923. Namba, an alien of the Japanese race, had lived on the land during the ownership of McGonigle, and had lived thereon for about ten years previously. During 1924 and 1925, Namba, with his wife and family, lived on and farmed the land in question. He was undisputedly in visible possession of the residence and cultivated the land. He would be entitled to the residence, however, under and by virtue of article 1 of the treaty between the United States and Japan (37 Stat. 1504). Appellant contends that the undisputed evidence shows possession and control of the farm land by Namba. We can discover no evidence in the record to sustain that assertion, or any evidence from which such factual inference can be deduced. Namba, it is true, tilled the soil and raised celery, lettuce, peas, and other garden truck and farm produce. He had a horse and an auto truck and would haul part of the produce raised on the farm to market. He would sell produce raised on the place to customers for cash. Prior to 1925 he took cash for the produce sold without giving any receipt, but during 1925 he had given small slips as receipts, bearing the name of respondent McGonigle. McGonigle also lived in Algona and from time to time was seen on or near the land in question.

Appellant then contends that it has established that the land in question was agricultural land, used and capable of being used only for agricultural purposes, was owned by respondent McGonigle, and that Namba, an alien, was in possession and control thereof and entitled to its use, enjoyment, issues, and profits, and had therefore clearly established a prima facie case of conspiracy to violate the Alien Land Law; and, having established such prima facie case, was entitled to introduce in evidence admissions made by each of the respondents as to their relations with each other and with the land.

The one error assigned by appellant in its brief is the ruling of the trial court dismissing the case because of the insufficiency of the evidence introduced by appellant; but, as subsidiary thereto, it elaborately argues the question of the consideration of the proofs as to several admissions or declarations made by each of the parties, individually, and not in the presence of the other. These alleged admissions or declarations of each of the respondents to strangers were received by the trial court regardless of the order of proof and without any promise on the part of the prosecution to make a prima facie case of conspiracy against respondents independent of the admissions or declarations introduced.

It is true, there need be no evidence of a formally expressed agreement between the alleged conspirators. Conspiracies are seldom susceptible to such proof. But if there is evidence circumstantial even, of a meeting of the minds and unity of design and of co-operative conduct which could only mean that there was such an agreement, that would be sufficient foundation for the admission of evidence of subsequent...