State v. Myers

• Decision Date: 17 November 1955
• Docket Number: No. 33186,33186
• Citation: 47 Wn.2d 840,290 P.2d 253
• Parties: The STATE of Washington, Respondent, v. Bertina G. MYERS, Appellant.
• Court: Washington Supreme Court

Page 840

47 Wn.2d 840

290 P.2d 253

The STATE of Washington, Respondent, v. Bertina G. MYERS, Appellant.

No. 33186.

Supreme Court of Washington, Department 1.

Nov. 17, 1955.

A. M. Ursich, Tacoma, for appellant.

Robert L. Charette, James J. Solan, Montesano, for respondent.

SCHWELLENBACH, Justice.

This is an appeal from a judgment and sentence entered upon conviction on three separate counts of the crime of offering false evidence.

Ben and Dorothy Ellwanger owned certain cabins located at Pacific Beach which they desired to sell. A listing letter was given to Mrs. Myers, a former school teacher residing in Tacoma, whose husband was a chaplain in the army stationed at McChord Field. As a result of a newspaper advertisement, she was contacted by a Mrs. Thelma Marshall, whose husband, Sylvester, was about to leave the service. The Marshalls were interested, but had no money for the down payment. Mrs. Myers, feeling that the Marshalls were directed to her by God, withdrew $10,000 from a savings account and had a check in that amount made out to the Ellwangers. The Marshalls executed a note to her in the sum of $2,500 secured by a mortgage on some lots which they owned. They also gave her an unsecured note in the sum of $7,500.

The down payment was made, a conditional contract of sale for the property entered into, and the Marshalls took possession. They were unable to make the payments, either on the contract of purchase with the Ellwangers, or on the two notes which they had given to Mrs. Myers. Ultimately the Marshalls executed a quitclaim deed to the Ellwangers and gave up possession.

While negotiations were pending on a proposed settlement between the parties, Mrs. Myers, in the office of an attorney in Hoquiam, produced three documents. They were, copies of a note payable to Mrs. Myers, an earnest money receipt, and a mortgage of the Ellwanger property as security, each in the amount of $10,000, and each containing the purported signatures of Mr. and Mrs. Ellwanger and Mr. and Mrs. Marshall.

A civil action was instituted by the Myers against the Ellwangers and the Marshalls on these documents at which Mrs. Myers testified concerning their execution. Thereafter criminal charges were preferred against Mrs. Myers, arising out of her testimony in the civil suit.

We shall not discuss the evidence in the criminal trial. Suffice to state it was sufficient to warrant the verdict of guilty. We shall concern ourselves with errors claimed to have been committed by the trial court.

After the criminal charges were preferred, Mrs. Myers appeared for arraignment, accompanied by counsel, and entered a plea of not guilty. Just before the time of trial her counsel moved for a continuance claiming that his client was psychotic, not capable of property appreciating her peril, and unable to rationally assist in her own defense. The prosecuting attorney joined in the motion and on April 30, 1954, the court ordered the matter continued until the October term.

Immediately afterwards an insanity hearing was held and she was committed to the Western State Hospital. On May 19, 1954, the superintendent of the Hospital certified that she was discharged as fully recovered and she joined her husband who was then stationed at Rantoul, Illinois.

Just prior to the trial date in the October term, Mrs. Myers' attorney made two separate motions for continuance, one on the ground of lack of jurisdiction in the court in that there had been no hearing or order that her sanity had been restored, and the other because of her health and due to her lack of cooperation in preparing her defense.

During the argument on the question of jurisdiction, the original court file covering the insanity matter was produced. The trial court took judicial notice of the fact that the insanity file contained a certificate of discharge as recovered, signed by the superintendent of the hospital. Counsel for the defendant, in arguing the motion, recognized the existence of the certificate in the insanity file.

RCW 71.02.610 provides:

'Whenever in the judgment of the superintendent of any state hospital, any patient shall have so far recovered as to make it safe for such patient and for the public to allow him to be at large, the superintendent may parole such patient and allow him to leave such hospital, and whenever in the judgment of the superintendent any patient has been restored to his mental health and is probably free from danger of relapse or recurrence of mental illness, the superintendent shall discharge such patient from the hospital.'

We recognized in In re Pfeiffer, 10 Wash.2d 703, 118 P.2d 158, and Soderquist v. Keller, 21 Wash.2d 1, 149 P.2d 528, in discussing a similar statute, that it was the only statute which authorized a determination of whether or not a person has become sane after commitment. In the Pfeiffer case we held that a court of equity has inherent power independent of statute to enter an order discharging a person as sane, who had theretofore been committed to an institution, and that such order could be based upon a certificate from the superintendent.

In Swak v. Department of Labor and Industries, 40 Wash.2d 51, 240 P.2d 560, we held that a court of this state may take judicial notice of the record in the cause presently before it or in proceedings engrafted, ancillary, or supplementary to it. We also held in that case that courts cannot, while trying one cause, take judicial notice of records of other independent and separate judicial proceedings, even though they may be between the same parties, and that in such situations, the record, though public, must be proved. Here we have a judge to whom a motion for continuance in a criminal action was made on the ground that the defendant was psychotic. ...