State v. Mevis

• Decision Date: 08 January 1959
• Docket Number: No. 34514,34514
• Citation: 333 P.2d 1095,53 Wn.2d 377
• Parties: STATE of Washington, Respondent, v. Roy E. MEVIS, Appellant,
• Court: Washington Supreme Court

Page 377

53 Wn.2d 377

333 P.2d 1095

STATE of Washington, Respondent, v. Roy E. MEVIS, Appellant,

No. 34514.

Supreme Court of Washington, Department 1.

Jan. 8, 1959.

Rehearing Denied Feb. 11, 1959.

Irving C. Paul, Jr., Seattle, for appellant.

Charles O. Carroll, Anthony Savage, Jr., Seattle for respondent.

HILL, Chief Justice.

This is an appeal from a conviction of second-degree burglary, and from the establishment of the status of the defendant as an habitual criminal. It comes before us on a twenty-eight page narrative statement of facts prepared through the cooperation of the attorney for the defendant and the assistant prosecuting attorney. It presents concisely the evidence pertinent to the issues raised by the defendant on this appeal. Counsel are to be commended; such cooperation could materially reduce the cost of appeals in many criminal and civil cases.

The Seven Seas Tavern in Seattle was burglarized at about 2:30 a.m. on February 19, 1957. Entrance into the false ceiling above the men's room in the tavern was made through or around a ventilating air duct located in the upper right-hand corner of a window at the rear of the building, which window had been broken by the intruder. He had then kicked loose a panel in the ceiling that covered the men's room, and broke open the door from that room into the tavern itself. Two pinball machines, operated by nickels, and one juke box, operated by dimes and quarters, were broken into and their contents removed. The coin container inside the juke box was a small white cloth bag. The tavern owner, on occasion, used Japanese ten-yen pieces, which are approximately the same size as quarters, to keep the juke box playing. After the burglary, the white cloth bag, the ten-yen pieces, and all of the coins were missing; a sugar bag full of nickels had been left behind along with a small crowbar.

The Seven Seas Hotel is above the tavern with its office on the second floor. The hotel night clerk, upon hearing the burglary alarm from the tavern, looked into the front hall and saw a man, whom he later identified as the defendant, entering a closet. The clerk ordered the man to leave, followed him to the street, and saw him go north on First avenue. When the police arrived, the clerk accompanied them upon a search of the neighborhood business establishments. The defendant was found in a nearby theatre lobby, and the clerk identified him as the man who had been in the hotel. His arrest followed, and it was found that he had a quantity of dust, dirt, and minute particles of glass on the shoulders of his jacket. The police searched him, and found a small white cloth bag containing quarters and forty-one ten-yen pieces; he also had a large quantity of dimes and nickels loose in his pockets, and some paper money in his back pocket. The quarters, dimes, and nickels added up to $51.90. The defendant protested the police keeping the paper money, saying, 'That's my money.'

The defendant was questioned twice after his arrest. He first claimed that an unidentified man on the sidewalk had thrust the white cloth bag of coins and ten-yen pieces into his hand, but later said he had obtained them from a man in the Seven Seas Hotel. He did not know the man's name or his whereabouts. At one time he told police that he would plead guilty, but later entered a plea of not guilty and went to trial.

A jury found him guilty of burglary in the second degree. A supplemental information then charged the defendant with being an habitual criminal, and a jury thereafter found him so to be. The defendant, in consequence of that finding, was sentenced to life imprisonment on the conviction of burglary in the second degree.

He appealed, and first assigns error to the trial court's holding that there was sufficient evidence to support a verdict of guilty of burglary in the second degree. The claim is made that the verdict must have rested upon an inference of guilt derived from circumstantial evidence of possession of recently stolen property; an inference upon an inference.

The rule is that mere proof of possession of such property cannot in itself establish a prima facie case of larceny or burglary. State v. Portee, 1946, 25 Wash.2d 246, 170 P.2d 326, and cases and authorities there cited. When the possession is established by inference rather than by direct proof, the reason for the rule is even stronger. State v. Willis, 1952, 40 Wash.2d 909, 246 P.2d 827; State v. Gillingham, 1949, 33 Wash.2d 847, 207 P.2d 737; State v. Payne, 1893, 6 Wash. 563, 34 P. 317.

The defendant points out that none of the goods in his possession at the time of his arrest was identified as being the goods that were stolen. The coins were, as a practical matter, impossible of identification. The owner of the Seven Seas Tavern and his wife both testified that the white cloth bag taken from the defendant was similar to that which had hung in the juke box until the night of the burglary, but no positive identification was made. Defendant's possession of recently stolen property must necessarily have been established by inference. The state concedes that if this were the only evidence of guilt, the defendant's challenge to its sufficiency should have been sustained.

However, the circumstances of defendant's unexplained presence in the hall of the hotel above the tavern (as the burglar alarm was ringing downstairs), and his apparent attempt to hide in a closet; the condition of his clothes at the time of his arrest, with particles of dust and glass upon them such as would be accumulated in entering the tavern as the burglar apparently had done; defendant's admissions to the police; and defendant's inconsistent explanations of his possession of the white bag and coins found upon his person, which could not be checked or rebutted, all point to his guilt. The challenge to the sufficiency of the evidence was properly denied. State v. Willis, supra; State v. Portee, supra; State v. Munson, 1893, 7 Wash. 239, 34 P. 932.

The defendant requested the following instruction:

'Before you may draw any inference unfavorable to the defendant from the possession of recently stolen property, the property itself must be identified with certainty as the particular stolen property and the possession of the defendant, if any, must be proved by direct evidence to have been exclusive, personal and conscious possession on the part of the defendant. Under the law you must not pyramid inference upon inference. This is to say you must not infer from circumstantial evidence that the defendant was in possession of stolen property, if he was, and then from such inferred possession make a further inference unfavorable to the defendant.'

This instruction was refused. The trial court instructed as follows:

'The possession of property recently stolen, if any such is shown, may or may not be taken as a criminating circumstance connected with such possession. It is a circumstance to be considered by the jury in connection with all the other evidence in the case in determining the guilt or innocence of the accused, and its weight as evidence, like that of any other fact, is to be determined by you alone.'

Defendant has assigned error both to the court's instruction and to the court's refusal of the proposed instruction. The effect of circumstantial evidence of possession of recently stolen property is thus put in issue on this appeal.

The defendant's strictly cautionary instruction would tell the jury, in effect, that unless direct evidence proves the accused's possession of stolen property, no possible further inference unfavorable to the accused could follow from such possession; circumstantial evidence of such possession could thus be of no effect whatsoever in the jury's deliberations on an accused's guilt of larceny or burglary....