State v. Thomas

• Decision Date: 24 September 1935
• Docket Number: 25727.
• Parties: STATE v. THOMAS et al.
• Court: Washington Supreme Court

49 P.2d 28

183 Wash. 643

STATE v. THOMAS et al.

No. 25727.

Supreme Court of Washington

September 24, 1935

Department 1.

Appeal from Superior Court, King County; Guy C. Alston, Judge.

John Thomas, alias Tom Anderson, was convicted of robbery, and he appeals.

Affirmed.

Clarence L. Gere, of Seattle, for appellant.

Warren G. Magnuson, of Seattle (Theodore S. Turner, of Seattle, of counsel), for respondent.

GERAGHTY Justice.

The appellant, with Earl Davelaar, was charged with the crime of robbery. Davelaar having pleaded guilty, the appellant was tried alone. The jury returned a verdict of guilty, and from a judgment entered thereon this appeal was taken.

The sole witness to the robbery was Sam Poliak, who conducts a men's furnishings store in Seattle. He testified that on the morning of the robbery, between 8 and 9 o'clock, two men, whom he identified as the appellant and Davelaar entered his store and purchased two pair of men's sox that after they started to leave the store they turned and the defendant pointed what he thought was a revolver in his direction, the object, whatever it was, being covered with a cloth or handkerchief. He also saw what he thought was a belt and holster. That when the appellant pointed the object at him, he put up his hands but was ordered by appellant to put them down. Davelaar then went back of the counter and took $12 from the cash register; that the defendants then left the store.

Police officers of the city of Seattle testified that, on hearing of the robbery, they went to the store and questioned Poliak. They learned that a barber near the place of the robbery had seen a taxicab and two young men leave the store. They found the driver of the taxicab and traced defendants to the Iola Apartments and from there to the Lake View Hotel. When they arrived at the hotel, the landlady informed them of the room the men had rented. They found the room empty and, looking over the transom and seeing clothes in the room, they entered and found a revolver in the dresser drawer. They left the revolver in the room until Davelaar returned. Later the appellant was arrested and brought to the room. The officers took the prisoners to police headquarters, together with the clothing and revolver.

The court overruled appellant's objection to the introduction of the revolver, on the ground that the search of his room was illegal in that no search warrant had been issued. The arrest of the appellant and Davelaar by the officers was justified. The officers had been informed that a felony had been committed and had reason to suspect appellant and Davelaar. The arrest being lawful, the officers had a right to take possession of any personal effects of the accused deemed necessary as evidence, and the subsequent introduction of these articles in evidence at the trial was not error. State v. Britton, 137 Wash. 360, 242 P. 377, 247 P. 9.

The circumstances under which the police officers entered the room prior to the arrest of appellant and his codefendant are not very definitely set out in the statement of facts. The officer testified that he looked over the transom and entered the room. The appellant contends he broke into the room. We are here concerned with what took place after the arrest. The officer took possession of the revolver and effects at the time of the arrest.

'But were it the fact that the search had been made without the consent of the appellant, we are not willing to hold that the search of his room was unlawful or the evidence obtained by the search inadmissible. A heinous crime had been committed. The appellant was under arrest as the perpetrator of the crime. There was then in the possession of the officers making the arrest persuasive evidence tending to show that the appellant was guilty of the crime. In so far as our examination of the cases has extended, all of the cases hold, even those which adhere most strictly to the rule that evidence obtained by an unlawful search is inadmissible as evidence, that where the accused is arrested in his home or place of residence, a search of the home or place of residence may be lawfully made for evidence of his guilt. In this instance, the defendant was on his way to his place of residence when arrested, and the fact that he was caught Before he reached the place ought not to require the application of a different rule.' State v. Evans, 145 Wash. 4, 258 P. 845, 849.

Error is also assigned upon the introduction in evidence of two pair of sox worn by the defendants at their arrest and taken by the police officers. These sox were identified by Poliak as the ones purchased at his store by the accused at the time of the robbery. What we have said with respect to the introduction of the revolver is equally applicable to the introduction of the sox. They were a vital link in the chain of evidence identifying the accused as the men who had committed the robbery.

The appellants invoke Rem. Rev. Stat. § 2240-1. This statute makes it unlawful for police officers to enter and search a private dwelling without the authority of a search warrant issued upon a complaint as by law provided. The statute, of course, has no application to a search...