State v. Tembruell
| Decision Date | 20 June 1957 |
| Docket Number | No. 33590,33590 |
| Citation | 312 P.2d 809,50 Wn.2d 456 |
| Court | Washington Supreme Court |
| Parties | The STATE of Washington, Respondent, v. Richard Daniel TEMBRUELL, Appellant. |
Howard F. Frye, Seattle, for appellant.
Charles O. Carroll, Laurence D. Regal, Charles Z. Smith, Seattle, for respondent.
This is an appeal from a judgment and sentence entered upon the verdict of a jury, in which the defendant was found guilty of the crime of grand larceny for having knowingly received stolen property.
Appellant assigns as error the court's instruction No. 5, which reads as follows:
'The word 'knowing', as used in the information, does not mean absolute, personal and certain knowledge on the part of the defendant that the property mentioned in the information had been stolen; it means such knowledge and information on the part of the defendant, at the time he did buy or receive or aid in concealing or withholding the property, if he did buy or receive or aid in concealing or withholding the property, as would put a man of ordinary prudence and intelligence and exercising ordinary care on his guard, and would cause such a man to believe and be satisfied that the property had been stolen.' (Italics ours.)
RCW 9.01.010 [cf. Rem.Rev.Stat. § 2303] defines the word 'knowingly,' as applied to larceny cases, as follows:
'* * * (4) The word 'knowingly' imports a knowledge that the facts exist which constitute the act or omission of a crime, and does not require knowledge of its unlawfulness; knowledge of any particular fact may be inferred from the knowledge of such other facts as should put an ordinarily prudent man upon inquiry. * * *' (Italics ours.)
The statute requires that the defendant have knowledge that the property was stolen. It permits knowledge on the part of the defendant to be inferred by the jury, if it is shown that such defendant knew of facts that would put a man of ordinary prudence upon inquiry. The statute is an evidentiary statute to guide the jury in determining, from all the circumstances, whether the defendant had actual knowledge that the property was in fact stolen.
Does the instruction given properly inform the jury as to the statutory test by which they may infer guilty knowledge on the part of the appellant? The instruction states that
'The word 'knowing' * * * means such knowledge and information on the part of the defendant * * * as would put a man of ordinary prudence and intelligence * * * on his guard, and would cause such a man to believe and be satisfied that the property had been stolen.' (Italics ours.)
To whom does the phrase, 'such a man,' refer? By the sentence structure, it can only refer to the hypothetical man, the man or ordinary prudence and intelligence. Under the statutory definition of knowledge, the jury may, in the excercise of their discretion, infer that a defendant had guilty knowledge, if the evidence establishes that the knowledge which he had would have put a man of ordinary prudence and intelligence on guard. By this statutory definition, the jury is required to make two determinations, (1) the extent of a defendant's knowledge, and (2) whether the defendant's knowledge warranted their inferring that he possessed guilty knowledge.
The instruction, as given, took from the jury the duty to make any determination as to (2), by instructing them that, if a hypothetical man of reasonable prudence and intelligence would have believed the goods were stolen, were he possessed of the same information as was the appellant, then they must find the appellant had sufficient knowledge. Under this instruction, the court, rather than the jury, determined that the appellant had guilty knowledge, if the jury found that the knowledge he had satisfied the prudent man test.
The instruction erroneously announced the law and was prejudicial. See State v. Rubenstein, 1912, 69 Wash. 38, 41, 124 P. 135.
In its brief, and in oral argument, the respondent contended that, if instruction No. 5 was erroneous, the error was cured by the correct statements of the law in instructions Nos. 2 and 3, in which the court told the jury, inter alia, that to find the appellant guilty they must find that he knew that the property was stolen.
We find no merit in this contention for two reasons: (1) the jury was not instructed that all of the instructions should be considered together, and (2), assuming that the jury did consider all of the instructions as a unit, the...
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State v. Funkhouser
...Moreover, the "knowledge" instruction given in this case would have been defective under prior law. See State v. Tembruell, 50 Wash.2d 456, 312 P.2d 809 (1957); State v. Rubenstein, 69 Wash. 38, 124 P. 135 (1912). Accordingly, it was error to instruct the jury to apply the new code's "knowl......
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State v. Green, 39066
...it. The evidence was inadmissible and the argument improper (State v. James, 63 Wash.2d 71, 385 P.2d 558 (1963); State v. Tembruell, 50 Wash.2d 456, 312 P.2d 809 (1957)), but the trial court was not given an opportunity to rule on the matter. Under the oft repeated rule that matters will no......
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State v. Van Antwerp
...other than those which are mala prohibita, to contain a legislatively designated element of intent. As stated in State v. Tembruell, 50 Wash.2d 456, 457-58, 312 P.2d 809 (1957): RCW 9.01.010 (Cf. Rem.Rev.Stat., § 2303) defines the word "knowingly," as applied to larceny cases, as ". . . (4)......
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...McGovern's knowing possession from the circumstances surrounding the discovery of Cassida's identification. See State v. Tembruell, 50 Wn.2d 456, 457-58, 312 P.2d 809 (1957). As with the other charges, the trial court did not err in submitting McGovern's charge for possession of another's i......