State v. Thompson, 35877

• Decision Date: 26 April 1962
• Docket Number: No. 35877,35877
• Court: Washington Supreme Court
• Parties: STATE of Washington, Respondent, v. Lucille THOMPSON, Appellant.

Page 837

59 Wn.2d 837

370 P.2d 964

STATE of Washington, Respondent, v. Lucille THOMPSON, Appellant.

No. 35877.

Supreme Court of Washington, Department 2.

April 26, 1962.

Murray B. Guterson, Seattle, for appellant.

Charles Q. Carroll, Pros. Atty., Frank L. Sullivan, James F. Kennedy, Deputy Pros. Attys., Seattle, for respondent.

DONWORTH, Judge.

This is an appeal from a judgment and sentence entered upon a jury verdict of guilty on three counts charging appellant with accepting the earnings of a common prostitute, which is a felony under the provisions of RCW 9.79.060(5).

The state produced substantial evidence from which the jury could have concluded that appellant had committed the acts charged. She did not take the stand or offer any evidence in her defense. Therefore, we do not find it necessary to discuss the evidence in detail.

The assignments of error are as follows:

'1. The court committed prejudicial error in denying appellant's motion to make more definite statement, requesting the naming of the unnamed common prostitute or prostitutes in each of the three Counts of the Information and requesting that the specific date or dates when earnings were allegedly accepted in Court 2 be set forth.

'2. The court committed prejudicial error in failing to grant appellant's various motions for a continuance of the trial on the basis of the health condition of the appellant.

'3. The court committed prejudicial error in failing to grant appellant's motion for a continuance on the basis of the endorsement of witnesses for the State on the day of trial.

'4. The court committed prejudicial error in refusing to instruct the jury in accordance with appellant's proposed instruction No. 4.

'5. The court committed prejudicial error in failing to grant appellant's motion for a new trial as the procedure followed by the court denied the appellant a fair trial and violated her rights protected under the due process clause of the State and Federal Constitutions.'

The arguments relating to these assignments of error will be treated in order.

As to the first assignment, appellant contends that:

'The Trial Court's refusal to grant appellant's motion to make a more definite statement denied the appellant her right to be informed of the nature and cause of the accusation against her. Count 2 failed to properly apprise the appellant of the charges pending against her and thus denied her the opportunity to properly prepare her defense. Counts 1, 2 and 3, when read together, were so ambiguous and indefinite that a person of common understanding would be unable to know what was intended.'

None of the counts in the Information named the common prostitute or prostitutes whose earnings the defendant allegedly accepted.

Count 2 alleged that the crime was committed 'during the period of time intervening between the 14th day of November, 1959 and the 17th day of May, 1960.' Counts 1 and 3 alleged that the crime was committed 'on or about' a specific date, namely, the 13th day of November, 1959, for Count 1, and the 18th day of May, 1960, for Count 3.

The names of Roberta Rodin, Patricia Wilcox, and Sally Jo Petitclerc were endorsed on the Information as witnesses for the state. All were called as witnesses at the trial.

The crimes were charged substantially in the language of the statute which defines the crime. The Information is sufficient to enable the trial court to pass sentence and to afford to appellant the protection of former jeopardy. According to the reasoning of State v. Larson, 178 Wash. 227, 34 P.2d 455 (1934), the Information in this case was sufficient to charge a crime, and to apprise appellant of the nature of the accusation against her.

Appellant contends, more specifically, that the general lack of precise dates was a hindrance to any attempt to conduct her defense, and that the additional failure to name the prostitutes involved made an adequate defense almost impossible. The complete answer to this contention is that there could have been no prejudice to appellant in view of the following: On June 23, 1960, almost four months before the trial (which began on October 19, 1960), and about one and one-half months before the filing of the motion to make more definite statement, a preliminary hearing was held in justice court. At that time, the three prostitutes involved, who had been endorsed on the information as witnesses, testified as to the matters charged in the presence of appellant and her counsel. Hence, appellant and her counsel were aware of the complete nature of the crimes charged, and virtually the exact testimony of the principal witnesses against her, almost four months before she went to trial in superior court. In view of this fact, we cannot say that the trial court erred in concluding that appellant had sufficient knowledge of the crimes charged and sufficient time in which to prepare a defense.

With regard to the second assignment of error, it is contended that appellant was in such ill health at the time of the trial that she was physically and emotionally unable to be of assistance in her own defense, and that she was virtually unaware of the events which were taking place in her presence.

When this matter was first called to the trial court's attention by appellant's counsel, the court questioned appellant (out of the hearing of the jury) to ascertain her capacity to participate in her defense. This was a matter peculiarly within the trial court's discretion. There is here no showing of any abuse of discretion.

Appellant relies primarily on a letter from a doctor to the effect that he would advise postponement of the trial. In addition, there is some indication that appellant was emotionally upset during the proceedings. Neither of these items of evidence is sufficient to clearly establish that appellant was unable to either understand the proceedings or assist in her defense.

The trial judge had the opportunity to observe appellant's demeanor throughout the trial. His conclusions are summarized in his comment at the conclusion of the trial:

'* * * I have observed the defendant. I think that she is competent. She understands what is going on, because she evidenced that when the witnesses would get on the stand. She knew what was happening. She particularly knew when her daughter got on the stand; the unfortunate position she was in, and that of her daughter she evidenced to me. * * *' The trial court's ruling with regard to matters peculiarly within its province to ascertain will not be disturbed where, as here, no abuse of discretion has been shown.

Regarding assignment of error No. 3, it is claimed that appellant was, in fact,

'* * * surprised by the late endorsement of witnesses, that the surprise was not occasioned by a lack of diligence on the part of appellant or appellant's counsel and that the surprise prevented the appellant from making that type of investigation which the character of the witnesses and the nature of the testimony demanded. The information supplied by the State with respect to the whereabouts of the witnesses in advance of trial was, if not misleading, not informative. The time allocated by the court on the day of trial for examination of the witnesses was inadequate because it failed to provide counsel with adequate opportunity to obtain rebuttal testimony and to make an independent examination of the testimony, character, ability to recall, and veracity of the witnesses, and because it denied counsel an opportunity to examine the witnesses prior to the voire dire of the jury.'

The applicable statute is RCW 10.37.030, which provides that the prosecuting attorney shall

'* * * at the time the case is set for trial * * * file with the clerk a list...