State v. Portee

Decision Date21 June 1946
Docket Number29842.
Citation170 P.2d 326,25 Wn.2d 246
PartiesSTATE v. PORTEE.
CourtWashington Supreme Court

Department 2

Proceeding by the State of Washington against Henry Portee for alleged grand larceny. From an order granting the defendant's motion for a directed verdict at the close of the State's evidence, the State of Washington appeals.

Order reversed and cause remanded for further trial.

Appeal from Superior Court, King County; Matthew W. Hill, judge.

Lloyd Shorett and John L. Vogel, both of Seattle for appellant.

Russell F. Stark, of Seattle, for respondent.

ROBINSON Justice.

In this action, the defendant was charged with grand larceny. The trial court, at the close of the state's evidence granted a motion for a directed verdict, and the case is here on the state's appeal. The respondent has moved to dismiss.

The state asserts its right to appeal by virtue of the provisions of Rem.Rev.Stat. § 2183-1, and specifically by that portion thereof which we italicize in quoting that section:

'The state may have a right of appeal to the supreme court, upon giving the same notice as is required of other parties when the error complained of is based on the following: (1) The setting aside of an indictment or information; (2) The sustaining of a demurrer to an indictment or information; (3) An order arresting judgment on any grounds; (4) An order granting to anyone, convicted by a jury, a new trial on any grounds; (5) Any order which in effect abates or determines the action, or discontinues the same, otherwise than by an acquittal of the defendant by a jury: Provided, That in no case shall the state have a right to an appeal where the defendant has been acquitted by a jury.'

Respondent questions the constitutionality of the statute. We will not discuss that point, since, in a recent case heard by the court sitting en banc, it was held to be constitutional in an opinion in which all of the then judges of this court concurred. State v. Brunn, 22 Wash.2d 120, 154 P.2d 826, 157 A.L.R. 1049.

It will be noted that the Legislature, in enacting § 2183-1, was careful, even to the point of redundancy, to provide that the state should not have the right to the appeal granted therein when a defendant has been acquitted 'by a jury.' This fact immediately suggests the question: Was the defendant in this case acquitted 'by a jury'? It is true that the jury returned a verdict of not guilty, but it did so at the direction of the court. In obeying the court's direction, it passed upon no issue of fact and exercised no element of discretion or decision. It merely performed a ministerial act. It seems to us, and we so hold, that a verdict of acquittal, directed by the trial judge, is, in effect, an acquittal by the trial judge himself. If authorities to that effect be required, they are numerous. The state's brief calls our attention to the following pertinent quotations from opinions rendered by courts of other states:

'When a verdict is directed by the court, the jury is bound to render the verdict as directed. In such instance the court alone determines the case, * * *.' Smalley v. Rio Grande Western Ry. Co., 34 Utah 423, 98 P. 311, 318.

'The direction to render a verdict in favor of one party is the decision by the court upon a question of law. * * * In giving a verdict upon such an order, the jurors do not exercise discretion, but act ministerially as the instrument by which the court prepares the record * * *.' In re Estate of Sharon, 179 Cal. 447, 177 P. 283, 289.

'A motion to direct a verdict is in effect a demurrer to the evidence, and entirely under the control of the court. * * * When the court directs a verdict it in effect takes the case from the jury, and molds the verdict itself.' Cook v. American Smelting & Refining Co., 99 N.J.Law 81, 122 A. 743.

'The verdict, though in form the act of the jury, is really the act of the court. The court determines the case. The verdict of the jury is merely a form of putting of record the judgment which the court has given.' Curran v. Stein, 110 Ky. 99, 60 S.W. 839, 840.

'* * * The only appreciable difference is that in the one the court, upon a given state of facts, which, in his opinion, does not entitle the plaintiff to a recovery as a matter of law, directs the clerk to enter a nonsuit; while in the other, upon the same facts, and entertaining the same opinion, he rightly asserts positive control over the consciences of the jury by directing and requiring them to find a verdict for the defendant. To call or regard a verdict so rendered a determination of the facts by a jury in any just sense is a palpable misnomer and a legal absurdity.' Ordway v. Boston & M. R. R., 69 N.H. 429, 45 A. 243, 245.

The order appealed from is as follows:

'This matter having come on for hearing this 3rd day of December, 1945, at the close of the State's case, upon the motion of the Defendant for a Directed Verdict of Acquittal, for the reason that the evidence produced by the State of Washington is insufficient, the Court having heard and examined all of the evidence (the Defendant having introduced none) and the arguments of counsel and it appearing to the Court that the State of Washington has not produced sufficient evidence to prove the crime charged,

'It is now therefore ordered, adjudged and decreed, that the Defendant's Motion for a Directed Verdict be granted and that the Jury be and it hereby is directed to return a Verdict of Acquittal for the Defendant.

'The plaintiff, State of Washington, excepts to each and every part of the above Order.'

In our opinion, an appeal from this order is clearly authorized by the terms of Rem.Rev.Stat. § 2183-1, hereinabove quoted. Its effect was to determine and discontinue the action. The motion to dismiss the appeal is, therefore, denied.

The question Before us on the merits is whether the ordinary, reasonable man could, on the evidence produced by the state, believe the defendant guilty beyond a reasonable doubt, as that term would have been properly defined in the instructions of the trial court, had the case been sent to the jury. If the ordinary, reasonable man could so believe, the trial court erred in taking the case from the jury; for, it must be kept in mind that the state, as well as the defendant, had the right to jury trial. Reduced to its lowest terms, the question is: Did the state's evidence make out a prima facie case?

Six witnesses testified on behalf of the state, and four exhibits were introduced. The salient points in the evidence may be stated in narrative form as follows:

On September 17, 1945, Jeanette Pahl arrived in Seattle, by train, and temporarily left her baggage, consisting of eight pieces, in storage at the railroad depot. At noon on September 21, she claimed the eight pieces of baggage. The railway checks were removed, and the checks of the Seattle Transfer Company substituted therefor, on each of the eight pieces. The depot supervisor for that company testified that he immediately placed the baggage on the company's loading dock, which was accessible to persons other than employees of the railroad or of the transfer company. When delivery of the baggage was made at Miss Pahl's residence, 1505 North 43rd street, at two-thirty p.m. that afternoon, a suitcase containing about two hundred dollars' worth of clothing was missing.

A day or two thereafter, the defendant was arrested on a charge wholly disconnected with this case. A pawn ticket, No. 66727, was found among his personal effects which indicated that he had pawned a suitcase at the Empire Loan Company on September 21. On September 27, Officer Davis, of the detective division of the Seattle police force, sent Officers Madden and Colfelt to Miss Pahl's residence, with directions to escort her to the Empire Loan Company to examine the article represented by the pawn ticket. She identified it at the loan company's office as her missing suitcase, and again so identified it in court.

Lewis Crystal, manager of the Empire Loan Company, testified that the suitcase was pawned at his place of business, 1206 First avenue, Seattle, on September 21, and that he personally handled the transaction. He identified the pawn ticket which was found in respondent's possession. This ticket, which is in evidence as an exhibit, was the loan company's No. 66727. Crystal also brought with him, and identified, a half page from the pawn book which is kept as the pawnshop's own record and for inspection on demand by the police. This page is dated September 21, 1945, and was also admitted as an exhibit in the case. It is the record of a dozen such transactions made on September 21, 1945. In each instance, at the right of the page, is a brief description of the article pawned, and at the left, the number of the ticket issued. Between these, in the middle of the page, are a number of blanks to be filled out. In this instance, the article pawned is described as 'Brown Suitcase, Red Binding.' The number of the ticket issued in the transaction is recorded as No. 66727. The first of the blanks in the middle of the page calls for the pawnor's name, and this he is required to supply in his own handwriting. In this instance, the name written in the blank is 'Jame Hermon.' His address is given in the same handwriting as 'Fremon Hotel.' The rest of the blanks are filled out by the lender, and in this instance it is recorded that the borrower was a negro about thirty-two years old, five feet eight inches tall, and weighing about one hundred and fifty pounds. Finally, there is a statement of the amount loaned, which was ten dollars. Mr. Crystal further testified that the suitcase was worth about forty dollars.

On September 28, the day following the identification of her...

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