State v. Olsen, 32577

• Decision Date: 24 November 1953
• Docket Number: No. 32577,32577
• Citation: 43 Wn.2d 726,263 P.2d 824
• Court: Washington Supreme Court
• Parties: STATE, v. OLSEN.

Page 726

43 Wn.2d 726

263 P.2d 824

STATE, v. OLSEN.

No. 32577.

Supreme Court of Washington, Department 1.

Nov. 24, 1953.

Gleeson & Smith, Spokane, for appellant.

Hugh H. Evans, John J. Lally, Spokane, for respondent.

WEAVER, Justice.

This is an appeal from a judgment and sentence entered after a jury verdict finding appellant guilty of (1) unlawfully carrying a pistol in a vehicle without a license therefor as required by law; and (2) unlawfully having in his possession tools adapted, designed, or commonly used in the commission of a burglary, under circumstances evincing an intent that the same be used for the commission of a crime.

Appellant was arrested for several traffic violations committed in the presence of a police officer. He was placed in the Spokane city jail and booked for negligent driving. He later forfeited bond on this charge. While the contents of his car were being placed in custody for safe-keeping by police officers, a routine procedure, the following items, among others, were found:

(a) a fully loaded automatic pistol was behind a folding armrest in the rear seat; (b) a set of tools, commonly used by safe burglars, was in the space between the car radiator and the front grill; and (c) a 'sap' and a La Grande, Oregon, police badge were on a ledge under the dashboard. Thereafter, the present charges were filed against appellant.

Appellant moved, before and during trial, that the gun, tools, 'sap', and police badge be suppressed and not admitted in evidence because they had been seized illegally.

The arrest was for traffic violations committed in the presence of the arresting officer. It was a lawful arrest. State v. Llewellyn, 1922, 119 Wash. 306, 205 P. 394. The search of the car was legal as an incident of the lawful arrest, for under the circumstances, the officers are not confined to a search of the person but may search the automobile which the person arrested was driving. State v. Cyr, 1952, 40 Wash.2d 840, 246 P.2d 480; State v. Deitz, 1925, 136 Wash. 228, 239 P. 386; State v. Hughlett, 1923, 124 Wash. 366, 214 P. 841. The fact that the appellant was charged with a crime, other than the one for which he was originally arrested, does not invalidate the arrest or the search which took place incident to the arrest. State ex rel. Fong v. Superior Court, 1948, 29 Wash.2d 601, 188 P.2d 125.

In this case, we have the added fact that the rear seat area of the car was piled high with numerous articles of personal property. The police officers were performing a routine duty in checking the articles for safe-keeping when the items were found which implicated the appellant.

The authorities cited by appellant to this point, Burley v. State, Fla., 1952, 59 So.2d 744; Graham v. State, Fla., 1952, 60 So.2d 186, are distinguishable from the instant case. In each, the arrest was unlawful; hence, the search was unlawful.

It was not error to refuse to suppress this evidence nor was it error to admit the articles in evidence, if otherwise competent.

In his opening statement, the deputy prosecuting attorney told the jury that the state would prove that the pistol was loaded when discovered in the car. Appellant's counsel immediately claimed surprise and moved for a vacation of the trial as to count I of the information, or for a continuance. The motion was denied.

Appellant's argument is this: by count I, he was charged under RCW 9.41.050; Rem.Rev.Stat. (Sup.), § 2516-5, which provides:

'No person shall carry a pistol in any vehicle * * * without a license therefor as hereinafter provided.'

The next section of the statute, Rem.Rev.Stat. (Sup.) § 2516-6, cf. RCW 9.41.060, describes certain persons who are exempt from the operation of the statute if the pistol is 'unloaded and in a secure wrapper' and is being transported under certain conditions. There is, therefore, a material variance and the resulting surprise damages his possible defense. Hence, he is entitled to a continuance.

We are not convinced by appellant's argument. Count I of the information is substantially in the words of the statute and the language is adequate to apprise the accused of the nature of the accusation with reasonable certainty. This is sufficient. State v. Moser, 1952, 41 Wash.2d 29, 246 P.2d 1101, and cases cited. It is immaterial whether the pistol is loaded or unloaded under the statute. It is not an element of the crime charged nor does it affect the penalty for a violation of the statute. Appellant still has the opportunity, if he chooses, to present all possible defenses. In addition, appellant did not attempt to comply with the statute, Rem.Rev.Stat., § 2135, cf. RCW 10.46.080, which governs the granting of continuances in criminal cases. The trial court did not err when it denied the motion for a continuance.

The tools found in the compartment, between the radiator and front grill of appellant's automobile, were admitted in evidence. An expert testified that the tools were such as were ordinarily used by a burglar for 'punching' and 'pealing' a safe.

The state introduced evidence of a recent burglary in La Grande, Oregon. The police badge had been taken from the burglarized safe; the 'sap' had been taken from the premises. Two persons...