State v. Meyers

• Decision Date: 18 October 1922
• Docket Number: 17050.
• Citation: 210 P. 4,121 Wash. 579
• Court: Washington Supreme Court
• Parties: STATE v. MEYERS et al.

210 P. 4

121 Wash. 579

STATE v. MEYERS et al.

No. 17050.

Supreme Court of Washington

October 18, 1922

Department 1.

Appeal from Superior Court, Skagit County; Everett Smith, Judge.

C. W Meyers and Al. Wilhelmson were convicted of bootlegging, and they appeal. Affirmed.

Chas. P. Murphy, of Seattle, for appellants.

W. L Brickey and W. H. Hodge, both of Mt. Vernon, for the State.

TOLMAN J.

Appellants appeal from a conviction on the charge of bootlegging.

Many errors are assigned, and, to discuss understandingly such points as we think discussion, a brief statement of the facts involved is required. The principal witness for the state upon the trial below was a man named Harvey Hopley, who lived on Samish Island in Skagit county, and operated a gas boat for a livelihood. He testified, after claiming immunity, that appellant Meyers visited him at his home in February preceding the offense charged in the information and made arrangements by which Hopley should go to British Columbia with his boat and bring 'stuff' back into this state, to be unloaded near his home, he to be paid $150 for each trip made, and his fines, if any, paid; that shortly after the conversation referred to a trip was made, but no 'stuff' was obtained, it having been stolen before the boat arrived at the place where it was held. About April 25, following the unsuccessful trip, Hopley was called on the telephone by a person whom he thought to be Meyers, who said he would be down in three or four days, or would send a man down. A day or so later appellant Wilhelmson telephoned that he would be down the next day, and asked Hopley to meet him. On the strength of these messages, Hopley provided oil and gas for his boat and made preparations for another trip. He met Wilhelmson according to appointment, took him to the hotel on Samish Island known as Lummi Lodge, conducted by one Knause, and there made arrangements with him to start with his boat, with Wilhelmson on board, at 9 o'clock that night, for Vancouver, British Columbia. The voyage to Vancouver was undertaken as agreed, occupied 11 hours, and on arrival the witness docked his boat as directed by Wilhelmson, and then went to a hotel, where he met appellant Meyers a short time later, and Meyers told him to be at his boat at 8:30 o'clock in the evening. Witness went to his boat as directed, and at about the hour mentioned a truck arrived loaded with sacks which were transferred to his boat and witness started on the return trip, accompanied by Wilhelmson, arriving at Samish Island about 9 o'clock on the morning of May 1. The sacks were left on the gas boat until about 12 o'clock that night, when the witness, assisted by Wilhelmson, transferred the sacks to a skiff, and the witness rowed the skiff to the beach, directly in front of the Lummi Lodge Hotel, where he unloaded the 30 sacks which made up his cargo onto the beach near a small tree, and above the flow of the tide. At the time of unloading he saw Meyers in front of the hotel, asked him for money, and was told that the money was in the bank, and that he would get it in a few days. He then saw a large, inclosed automobile standing near the hotel. His description of it clearly identifies it as being the machine found there by the sheriff the next morning. The witness professed not to know what was in the sacks which he transported, supposed that they contained liquor, and says he was told by Meyers to dump it all overboard if he met a revenue cutter.

The sheriff and his deputies testified to starting at about the hour when Hopley was unloading the sacks on the beach, driving to a point where they intercepted the only road leading from Samish Island, barricading the road, and waiting there until 5 o'clock in the morning. They then drove on to the hotel, saw a big inclosed automobile with two men, supposed to be the appellants, standing beside it, who, seeing the sheriff approach, ran into the hotel. They were followed and arrested by the deputies, no other guests being found in the hotel, and no evidence found that there were other guests then occupying the hotel. Meyers, according to the sheriff's testimony, admitted his identity, and admitted the ownership of the car and of the 23 sacks of liquor found therein.

Appellants' first contention is that the trial court erred in denying their demand for a bill of particulars, in overruling their demurrer to the information, and in denying them separate trials, all of which rulings are embraced in one order. The information charges George Knause, the proprietor of the hotel, the witness Harvey Hopper (Hopley), and the two appellants, by name, with the crime of bootlegging committed as follows:

'Then and there being at or near Samish Island, Skagit county, Wash., and on or about the 2d day of May, 1921, the said defendants and each of them, did willfully, unlawfully, and feloniously carry about with them, for the purpose of unlawful sale thereof, certain intoxicating liquor, to wit, a liquor or liquid capable of being used as a beverage and containing intoxicating properties, to wit, alcohol, contrary to the form of the statute in such case made and provided and against the peace and dignity of the state of Washington.'

The fault claimed in the information, as we understand it, being that each one of the four is charged severally and individually, with no allegation that they joined in the same act or acts, and that each of the four may have committed the unlawful act at a different and distinct time, and by a different method. It is claimed that, if a bill of particulars had been ordered, the facts thus brought out would have tended to show distinct offenses, and, if the offenses were distinct, separate trials should have been granted. Whatever might be said on behalf of Knause, who was acquitted by the jury, or Hopley, who was granted a separate trial, it would seem that they, and they alone, were adversely affected by these rulings, for the evidence without any contradiction, shows that the appellants acted in concert throughout, and we cannot conceive that they suffered any...