State v. Stump
| Decision Date | 07 January 1943 |
| Docket Number | 28806. |
| Citation | 16 Wn.2d 140,132 P.2d 727 |
| Parties | STATE v. STUMP et al. |
| Court | Washington Supreme Court |
Department 1.
Lilly Stump and Clyde Nunn were convicted of possessing liquor on premises conducted or maintained by them as principals or agents with intent to sell the same, defendant Stump being charged with previous convictions, and they appeal.
Affirmed.
Appeal from Superior Court, Snohomish County Ralph C. Bell, judge.
John C Richards, of Everett, for appellants.
Leslie R. Cooper, C. P. Brownlee, and Philip Sheridan, all of Everett, for respondent.
On February 27, 1942, Lilly Stump and Clyde Nunn were, by an information filed by the prosecuting attorney of Snohomish county, jointly charged with a violation Rem.Rev.Stat. (Sup.) §§ 7306-92A and 7306-93, as follows:
Section 7306-92A, supra, provides:
Section 7306-93, supra, provides in part: 'Every person guilty of a violation of this act for which no penalty has been specifically provided shall be liable, on conviction, for a first offense to a penalty of not more than three hundred dollars, or to imprisonment for not more than two months, with or without hard labor, or both; for a second offense to imprisonment for not more than six months, with or without hard labor; and for a third or subsequent offense to imprisonment for not more than one year, with or without hard labor.'
Defendant Nunn moved for a separate trial, based principally upon the ground that he would be prejudiced by a joint trial, due to the fact that his co-defendant had been charged with prior convictions.
Defendants demurred separately to the information on the grounds that the information does not substantially conform to the requirements of the law; that more than one crime is charged; and that two different charges have been improperly united in the information.
The trial court denied Nunn's motion for a separate trial, and overruled the demurrers, and in so doing had the following to say relative to the procedure to be followed during the trial:
The facts in this case are not entirely undisputed, but the jury were entitled to believe the following events occurred: An under-cover agent for the state liquor board, on February 1, 1942, purchased from a Mr. Nolan two pints of whiskey at the Kentucky apartments or rooms, operated by defendant Stump, after the agent had been admitted to the building by defendant Stump, and after he had stated he wanted to buy some whiskey. Nolan was called by Lilly Stump, who informed the agent that Nolan might help him. After some interrogation of the agent, Nolan went out of the room and shortly came back with two pints of whiskey, for which the agent paid him $3.50, or $1.75 a pint. On February 8, 1942, this agent purchased a pint of whiskey from defendant Nunn, at this same place, after defendant Stump had informed Nunn that the agent was all right. On February 15, 1942, this same agent bought a drink and a pint of whiskey from defendant Stump at the same place.
Lilly Stump testified that she owned the Kentucky apartments, and that Mr. Nunn worked for her. On February 20, 1942, these apartments were raided by enforcement officers of the liquor board, at which time there was found on the premises a quantity of liquor which belonged to defendants Stump and Nunn. There was, in our opinion, sufficient evidence from which the jury could find that defendants maintained this place for the sale of intoxicating liquor.
Defendants do not seriously contend that there was not sufficient evidence to take the case to the jury on the question of their guilt, but their main argument is in relation to the trial procedure.
We have heretofore set out the statute upon which this prosecution is based, and have set out the statement made by the trial court relative to the trial procedure.
The trial court probably would have been justified in following the procedure outlined by it at the beginning of the trial; however, during the course of the trial, defendant Stump took the stand, and upon cross-examination admitted that she had twice Before been convicted of a violation of the state liquor law, as alleged in the information. This testimony went in without objection. The state, apparently not feeling sure that the admission of defendant Stump was sufficient to establish the prior convictions, at the close of defendants' case asked permission to introduce more definite evidence of Lilly Stump's prior convictions. The court permitted the state to offer additional testimony as to the prior convictions of defendant Stump, and in explanation of what he had originally stated concerning the procedure to be followed, said:
'Now, I do not know what I shall take to be the significance of those words, 'unless the course of trial shall compel such.' It meant to me just what has occurred here,--defendant Stump became a witness, and at least these previous convictions have been alluded to in her cross-examination, and are now Before the jury, and I understand she admitted both convictions. * * *
'There will go to this jury now the question of the guilt or innocence of the defendant Stump of the primary offense and of the aggravated offense, and of the guilt or innocence of the defendant Nunn of the primary offense.'
Mr. Richards, counsel for defendants, objected to the introduction of this evidence.
The state then called the justice of the peace for Lowell precinct, and the clerk of the justice court of Everett precinct, who testified as to Lilly Stump's prior convictions.
The court submitted to the jury the question of the aggravated offense, with the following instruction:
'I instruct you that the state has also charged as to the defendant Lilly Stump that she was, prior to the filing of the information herein on the 27th day of February, 1942, previously convicted on the 10th day of May, 1939, in the justice's court of Lowell precinct of Snohomish county, Washington, of a violation of the Washington state liquor act by way of unlawful sale of liquor by the drink; and further, that she, the said Lilly Stump, was on the 15th day of September, 1939, in justice's court of Everett precinct, Snohomish county, Washington, convicted of a violation of the Washington state liquor act by way of having unlawful possession of intoxicating liquor with intent to sell.
'No such charges of previous conviction are made as to the Accused, Nunn, and in no wise are accusations of such as to the defendant Stump to enter into your consideration as to him, nor in any wise are they to affect your determination of his guilt or innocence of that crime with which he is here charged and for which he is on trial. Nor is any previous conviction alleged as to accused Stump to be deemed, if proven, any evidence of her guilt under the last previous instruction.
'These charges of previous conviction constitute what is known in law as a charge of 'aggravated offense,' or violation of the Washington state liquor act as to the defendant Stump.
'As to her you will answer by 'yes' or 'no' the interrogatories submitted you in the form of verdict. Your answer as to each interrogatory must be in accordance with the evidence bearing on the question of alleged prior conviction and dependent upon whether you are convinced thereon beyond a reasonable doubt, for proof beyond a reasonable doubt alone will justify you in finding there was a previous conviction.
'Of course, in event you shall not find Lilly Stump guilty of possessing or keeping whiskey with intent to sell, as alleged, you are not required to answer either interrogatory as she could then in no event be guilty of the aggravated offense alleged.'
The jury, by their verdict, found both defendants guilty of possessing liquor on premises conducted or maintained by them premises conducted or maintained by them as principal or agent, with intent to sell the same. They also found, in answer to special interrogatories, that defendant...
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State v. Waterhouse
...same effect see People v. Coleman, 145 Cal. 609, 79 P. 283; 42 C.J.S., Indictments and Informations, § 145, p. 1058. In State v. Stump, 16 Wash.2d 140, 149, 132 P.2d 727, a case involving prior convictions under a liquor prohibition law, the court gave its approval to the practice of chargi......
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State v. Sayward
...27 Wash.2d 186, 177 P.2d 387, 181 P.2d 830 (1947), and cases cited. In this case, appellant did not take the stand. In State v. Stump, 16 Wash.2d 140, 132 P.2d 727 (1943) (relied upon by the state), the admissibility of evidence of prior convictions was considered. There, the defendant was ......
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State v. Gairns
...Wash.2d 485, 490, 387 P.2d 746, 749 (1963) where the court held: We disagree with the broad statement made in Stump (State v. Stump, 16 Wash.2d 140, 132 P.2d 727 (1943)). We hold that it is prejudicial error to allow evidence of a prior conviction of a similar offense to be introduced in a ......