State v. Myers

• Decision Date: 25 March 1965
• Docket Number: No. 37454,37454
• Citation: 400 P.2d 372,65 Wn.2d 911
• Parties: The STATE of Washington, Respondent, v. Eduardo Salazar MYERS, Appellant.
• Court: Washington Supreme Court

Page 911

65 Wn.2d 911

400 P.2d 372

The STATE of Washington, Respondent, v. Eduardo Salazar MYERS, Appellant.

No. 37454.

Supreme Court of Washington, Department 2.

March 25, 1965.

Charles C. Countryman, Yakima, for appellant.

Lincoln E. Shropshire, Pros. Atty., Patrick H. Olwell, Deputy Pros. Atty., Yakima, for respondent.

HAMILTON, Judge.

On August 14, 1963, defendant was observed in an alley area carrying four suits of clothing with price tags 'flopping in the breeze.' The police were notified and defendant was subsequently arrested in a tavern with the suits in his possession. Upon questioning, he stated that a man had given him the suits as he approached the tavern, and that he intended to sell them to obtain wine. The suits had a combined value in excess of $75 and were identified as having come from a local Montgomery Ward store, located approximately four blocks from the area where defendant was first observed and about five blocks from the tavern where he was apprehended. Defendant was charged, tried before a jury, and convicted, under the larceny statute, of the offense of receiving stolen property. He appeals.

RCW 9.54.010 defines the offense with which defendant was charged as follows:

'Every person who, with intent to deprive or defraud the owner thereof--

'(5) Every person who, knowing the same to have been so appropriated, shall bring into this state, or buy, sell, receive or aid in concealing or withholding any property wrongfully appropriated, whether within or outside of this state, in such manner as to constitute larceny under the provisions of this chapter--

'Steals such property and shall be guilty of larceny.'

The essential elements of the offense are prescribed in State v. Martin, 94 Wash. 313, 314, 162 P. 356 (1917), as:

'* * * (1) The property must have been appropriated in such manner as to constitute larceny; (2) the accused must have known that the property had been so appropriated; (3) the property must have been received by him with the felonious intent to deprive or defraud the owner thereof. * * *'

On appeal, defendant tacitly concedes the evidence legally sufficient to support an adverse jury finding as to the second and third elements. He challenges only the sufficiency of the evidence as it bears upon the first element. In short, defendant contends the state's evidence is legally insufficient to support a jury finding that the suits found in his possession were stolen or otherwise unlawfully appropriated. Thus defendant argues, the trial court erred in submitting the case to the jury.

No one saw the suits removed from the store; therefore, the evidence bearing upon the question of how, when, and why the suits left the store was necessarily circumstantial in nature.

In State v. Lewis, 55 Wash.2d 665, 669, 349 P.2d 438, 441 (1960), we capsulized the rule with respect to the evaluation of circumstantial evidence as follows:

'The question whether circumstantial evidence * * * excludes, to a moral certainty, every other reasonable hypothesis than that of guilt, is a question for the jury, and not for the court, when the evidence, although circumstantial, is legally sufficient to take ...