State v. Simons

• Citation: 20 P.2d 844,172 Wash. 438
• Decision Date: 04 April 1933
• Docket Number: 24302.
• Parties: STATE v. SIMONS et al.
• Court: Washington Supreme Court

20 P.2d 844

172 Wash. 438

STATE v. SIMONS et al.

No. 24302.

Supreme Court of Washington

April 4, 1933

Department 2.

Appeal from Superior Court, Adams County; Chas. Leavy, Judge.

Frank Simons and another were convicted of grand larceny of cattle and they appeal.

Affirmed.

Frank J. Allen, of Yakima, for appellants.

George H. Freese and Richard B. Ott, both of Ritzville, for respondent.

BLAKE Justice.

The defendants were jointly charged with stealing six head of cattle in Adams county. Defendant Herman Hoop pleaded guilty and at the trial testified as a witness for the state. From judgment and sentence entered on a verdict of guilty of grand larceny, defendants Frank Simons and William Stingley appeal.

At the time the crime was committed, Hoop resided at Ellensburg Simons resided on a ranch near Ellensburg, and Stingley was living on a ranch, owned by Simons, in the northwest part of Adams county. Hoop testified that, by prearrangement with Simons, on September 10, 1930, he went to Simons' Adams county ranch, where he found Simons and Stingley. He drove over from Ellensburg in a truck equipped with a cattle rack, which he left at an abandoned ranch known as the 'Hicks place,' two or three miles westerly from the Simons ranch. From there he walked over to the Simons place, where he spent the day. In the evening he walked back to the Hicks place, where he waited until 8 or 9 o'clock when Simons and Stingley, on horseback, drove up a bunch of cattle from the south. Six head were loaded on Hoop's truck, and he started for Roslyn, intending to strike the Sunset highway at a point east of Vantage bridge. It had been raining and the roads were somewhat muddy. Before he reached the highway the truck stalled at the foot of a pitch on the dirt road he was traveling, at a point near what is called 'Ide's place.' Ide came down to help him out, and, while they were standing there, Simons, driving a Ford truck loaded with sheep, passed without stopping.

Hoop's truck stalled again three or four miles beyond Ide's place. This time Simons, coming along in a Ford truck, helped him to get started. From there on he proceeded to Roslyn without misadventure, stopping for gas, however, between 4 and 5 a. m. of September 11th, at Mrs. Potter's service station at Vantage bridge. At Roslyn he sold the cattle to Mike Carek, who paid him $80 in cash and gave him a check for $200.05. Hoop indorsed this check and gave it to Simons.

The foregoing is not a complete summary of Hoop's testimony, but it is sufficient, taken with other evidence hereafter noticed, for consideration of the errors assigned by appellants.

Simons received the check for $200.05 and cashed it--not admitting, of course, that he knew the source of it.

Mrs. Potter testified that Hoop, with a truckload of cattle, stopped at her service station for gas between 4 and 5 in the morning of the eleventh. Furthermore, she testified that Simons, between 5 and 6 of the same morning, stopped for gas, and that he was driving a Ford truck loaded with sheep.

Ide testified that he helped Hoop out the first time he was stalled, and that, while he was so engaged, a Ford truck passed them without stopping. He also testified that sometimes a month would go by without a car passing along that road. After Hoop got started, Ide watched him until he stalled the second time, when, shortly after, another car drove up by Hoop's. From the maneuvering of the lights of the second car, Ide saw it pull in front of Hoop's truck, saw the two cars move together a short distance and stop. Then they moved on separately.

A few days after the cattle were stolen, the owner, Danielson, and B. P. Herman tracked them from the pasture from which they were taken, about four miles north to the Hicks place, where they were loaded. They both testified that the cattle were driven by two horsemen. Herman testified that he recognized the hoof marks of one of the horses as those of a horse owned by Simons and which he had seen ridden by Simons on a previous occasion. Danielson further testified that he followed the tracks of the truck to the point where they entered the Sunset highway. He also observed the tracks of the second car at both points where Hoop got stalled.

Photographs of the tracks made by this car were taken, at the point where Hoop was first stalled, and the photographs were admitted in evidence. Testimony was also given to the effect that the tracks on the ground and those shown by the photographs were made by a car with tires of the same kind as those on Simons' Ford truck.

Appellants present nine assignments of error.

Appellants made a motion for a directed verdict of not guilty. The foregoing narrative of the facts proven seems to us to require no comment in justification of the trial court's denial of the motion.

The court gave, in substance, an instruction which has been many times approved by this court, relative to the scrutiny and weight to be given and attached to the testimony of an accomplice. State v. Jones, 53 Wash. 142, 101 P 708. Appellants predicate error on the giving of this instruction and the court's refusal to give a requested instruction, in substance the character of that discussed and approved in State v. Pearson, 37 Wash. 405, 79 P. 985. We think the instruction given was correct, and that the instruction requested was properly refused. There is a lack of similarity between the facts in this case and the facts of the Pearson Case. In that case the accomplice was a confessed perjurer and his testimony was uncorroborated. Here the accomplice was corroborated, and there was no more discrepancy in his testimony in the various trials than could be reasonably attributed to a memory becoming less vivid by lapse of...