State v. Tollett, s. 39198--39200
| Decision Date | 17 August 1967 |
| Docket Number | Nos. 39198--39200,s. 39198--39200 |
| Citation | 431 P.2d 168,71 Wn.2d 806 |
| Court | Washington Supreme Court |
| Parties | The STATE of Washington, Respondent, v. Henry Clay TOLLETT and Frank Bell, Appellants. |
Velikanje, Moore & Countryman, Stephen L. Johnson, Mark R. Fortier, Yakima, for appellant.
Lincoln Shropshire, Pros. Atty., Patrick Olwell, Deputy Pros. Atty., Yakima, for respondent.
*
Appellants, Henry Clay Tollett and Frank Bell, appeal from judgments entered by the Superior Court of Yakima County pursuant to verdicts of a jury finding them guilty of the crime of grand larceny by way of receiving and withholding property of a value in excess of $75 known to have been stolen, all in violation of RCW 9.54.010(5) and RCW 9.54.090(6). Appellants were codefendants in the superior court along with George H. Treece and Douglas W. Lavere, who also were convicted but do not appeal. Appellants filed separate notices of appeal. The appeals were consolidated.
Everett McKeller Construction Company was engaged in construction of a bridge over the Naches River in Yakima County. A shed was erected to house tools. The door of the shed was secured at the time employees of the construction company left work about 4:30 p.m. on Friday, April 8, 1966. Upon returning to work on Monday morning, April 11, 1966, they discovered that the shed had been broken open and that tools consisting of a Homelite chain saw, electric drill, electric skill saw, chain, and a hoist had been stolen. In the late morning or early afternoon of Saturday, April 9, 1966, an automobile containing the appellants and the two other defendants drove into the yard of Morton Supply in Yakima. Appellant Tollett approached Mr. Ralph Morton for the purpose of selling the stolen tools which were in the car. After considerable conversation and dickering, Mr. Morton purchased the tools for $60. Other facts will be noticed in connection with discussion of assignments of error.
It is first contended that the state did not prove that the stolen articles were of a value in excess of $75 at the time of the theft. The owner testified that the tools were worth in excess of $300. Mr. Ralph Morton, one of the proprietors of Morton Supply, testified on one occasion to a value of $60, but when asked as to the value of individual items, testified to values which totaled $112. It was for the jury to weigh the various opinions.
The witnesses did not express their opinion on value as of the date of the theft but as of the date of trial. The tools were sold on April 9, 1966. The trial commenced on May 24, 1966. The lapse of less than 7 weeks did not make the opinions worthless in determining value as of the date the tools were unlawfully received and withheld.
Mr. McKeller's opinion of value was based on the fact that the saw was operable; whereas Mr. Morton was unable to start the chain saw at the time he purchased it. This did not destroy the probative force of Mr. McKeller's opinion on value. The result of a test allowed by the trial court showed that the saw was operable at the time of trial, and there was proof that the saw had been in the sheriff's locker between the time it was secured from Morton Supply and the date of trial. There was ample evidence to warrant the conclusion of the jury that the tools were worth more than $75 on the date of the commission of the offense.
Appellants assert that a mistrial should have been granted becuase of an accumulation of so-called irregularities which occurred during the trial. Appellant Tollett refused before the jury was chosen to consent to separation of the jury, but later did consent to separation after the jury was chosen. The trial court took full responsibility in announcing at the commencement of the trial that the jury would be kept together. When the jurors were later told that they could separate, the trial court did not say anything from which the jurors could conclude that any of the defendants had been responsible for the first order against separation. No prejudice to the appellants was shown.
Counsel for defendant Treece (not an appellant) told the jury in his opening statement that his client would take the witness stand contrary to the usual practice advocated by defense attorneys. Counsel for defendant Treece further requested the deputy prosecuting attorney to supply him with a copy of a so-called FBI rap sheet showing previous convictions of his client. In complying with this request, it is claimed the deputy prosecuting attorney thumbed through several papers which appeared to be other rap sheets. There is no contention that the deputy prosecuting attorney made any unnecessary display of the documents. The deputy prosecuting attorney was in no way responsible for what the attorney for defendant Treece said in his opening statement, nor did he do anything improper in securing the record of previous convictions at the request of counsel for defendant Treece.
The deputy prosecuting attorney made the following remarks during the course of his closing argument:
Of course, if you believe they took them, then, of course, they knew they were stolen, if they stole them, themselves. If you believe possibly they received them from somebody else, then you have to infer that they knew they were stolen. Tollett, the question was--first of all don't believe Tollett, because we know he wasn't telling the truth to begin with when he was on the stand, and when he said he wasn't there to begin with. The rest of them all testified--or not testified--excuse me--the other three, in statements to Deputy Sheriff Thompson, said that they didn't know anything about these tools, which we know isn't true, too, because we know that they were down there. 1
Contrary to appellants' assertion, we cannot find that these remarks contain a comment on the failure of appellant Bell to testify. The remark of the deputy prosecutor in which he said, 'The rest of them all testified' was obviously inadvertent and was corrected as soon as possible. The deputy prosecutor was referring to the testimony of Deputy Sheriff Thompson that Treece, Lavere and Bell had made statements to him in which they said that all four had come from Portland to Yakima together, and that they knew nothing about the tools or the sale to Morton Supply.
We also find no merit in appellants' contention that the deputy prosecuting attorney asserted some 'special knowledge' as to the whereabouts of appellants on April 9, 1966. He used the pronoun 'we' as indicating the jury and himself. His remark merely had...
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State v. Garfield
... ... defendant, such as: giving a fictitious name to a potential ... buyer of the stolen goods, State v. Tollett, 71 ... Wn.2d 806, 810, 431 P.2d 168 (1967); having a past history of ... transactions involving stolen goods, State v. Hatch, ... ...
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State v. Garfield
...knowledge may inculpate a defendant, such as: giving a fictitious name to a potential buyer of the stolen goods, State v. Tollett, 71 Wn.2d 806, 810,431 P.2d 168 (1967); having a past history of transactions involving stolen goods, State v. Hatch, 4 Wn. App. 691, 693, 483 P.2d 864 (1971); o......
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State v. Haverty
...possession of the coat, probable cause to arrest arose. State v. Brooks, 57 Wash.2d 422, 357 P.2d 735 (1960). See State v. Tollett, 71 Wash.2d 806, 431 P.2d 168 (1967). Statements made at the police station after the defendant was again warned concerning his constitutional rights were also ......
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State v. O'Neel, No. 22916-5-III (WA 8/25/2005)
...where the defendant gave improbable or inconsistent explanation for his or her possession of the stolen goods); State v. Tollett, 71 Wn.2d 806, 811, 431 P.2d 168 (1967) (proof of possession of stolen goods, unless accompanied by other guilty circumstances such as giving a improbable explana......