State v. Van Brunt

• Decision Date: 29 December 1944
• Docket Number: 29357.
• Citation: 22 Wn.2d 103,154 P.2d 606
• Court: Washington Supreme Court
• Parties: STATE v. VAN BRUNT.

154 P.2d 606

22 Wn.2d 103

STATE v. VAN BRUNT.

No. 29357.

Supreme Court of Washington

December 29, 1944

Department 2.

Gerald Van Brunt was convicted of larceny of a calf, and he appeals.

Affirmed.

Appeal from Superior Court, Okanogan County; Fred Kemp, judge.

Thomas A. E. Lally, of Spokane, for appellant.

John Hancock, of Okanogan, for respondent.

MALLERY Justice.

The defendant was tried and convicted on an information charging him, jointly with several others, with the larceny of a yearling bull calf, the true owner being unknown, on October 10, 1941. He appeals.

His confession introduced in evidence is as follows:

'I, Gerald Van Brunt, make the following statement and confession of my own free will and accord after being fully advised of all my legal rights and without promise of immunity or without threat being made to me. Sometime in the fall of 1941 Dick Peasley met me in Omak and wanted to know if I would like to take a ride to Nespelem. Dick had a couple of small calves which he wanted to trade off and he took these along in the pick-up. We went to the Clarence Bell place north of Nespelem and talked with both Mr. and Mrs Bell in regard to trading them the two calves, and Dick also wanted to get some short yearling calves from Bell. As I recall the conversation and statements made by the Bell's and Dick, Mrs. Bell had made arrangements to butcher one of their calves and sell it. Dick wanted to buy both of the short yearling calves which the Bell's had, but Mrs. Bell insisted that she had to butcher one of them. It was finally agreed upon that Dick would buy the two calves from Bell's and would trade or sell them the two small calves which he brought over and he would help them butcher a calf from off the range and they could sell it instead butchering one of the two in pasture. Either Dick Peasley or Clarence Bell asked me to go with Mrs. Bell to find a calf that they could butcher. Mrs. Bell and I took a couple of saddle horses and started out on the hill above the Bell place to find a calf. Mrs. Bell, apparently, knew where we could find such a calf, and I went along with her. We found five or six head of cattle about a mile from Bell's and drove them down to Bell's corral. There was a red and white Hereford calf which Clarence and Dick and the rest of us thought would be the best one to butcher. We took all of the other cattle out of the corral except the red and white calf and Mrs. Bell and I drove the rest of the cattle nearly back to the place where we found them. Dick and Clarence butchered the calf and hung it up on the front end of the barn. When Mrs. Bell and I returned, Clarence and Dick had just finished taking the entrails out of the animal and had cut off the head and feet. I knew at the time that Mrs Bell and I got out to the cattle that we were going to get a calf that did not belong to Bell's. When I got to the barn I understood then Clarence and Dick were going to butcher somebody's calf. I had never done this sort of thing Before , and I did make some statement to Mrs. Bell that I did not like the idea of going out and getting someone else's calf to butcher. I also knew at the time we got back to the corral that it was the intention of Clarence and Dick to butcher a calf that did not belong to either of them. Dick and I came back to Omak after the calf was butchered and Dick hauled the two calves he had purchased from Bell's in his pick-up. It was the understanding at the time we left Bell's that Clarence would bring the butchered animal over to Omak the next day in his trailer. I saw Dick and Clarence together the following day in Omak. About two days later Dick met me in the poolhall at Omak and wanted to know if I would ride down to Okanogan and help him get the animal out of Fred Pien's cooler. Dick and Clarence, had understood, brought the butchered calf down to Pien's to have it skinned out. Dick and I hauled the meat back to Omak and took half of it to the Safeway Market. I left Dick there and did not go with him to deliver the rest of the meat. I did not get any part of the money which was received from the sale of the meat and had no other part in this deal than I have stated herein. I Gerald Van Brunt, have read the above and foregoing statement consisting of this page and one other, understand the contents thereof, and the statements made by me therein, and know that they are true.

'Dated this 19th day of Angust, 1943, at Okanogan, Washington.

'Gerald Van Brunt'

'Witnesses:

'Lester H. Moss

'John Hancock

'Time 3:45 P. M. August 19, 1943.'

It was shown by disinterested witnesses that the head of the calf, after butchering, had been wrapped in burlap, tied with wire, and thrown over a cliff. The head was found and taken to a certain butcher shop and compared with the hide of the calf which had been brought to the shop and there skinned and divided. The head and the hide belonged to the same identical calf. The defendant and another person took the meat away from the shop and delivered one-half of it to the Safeway market. It should be noted here that the defendant admitted the doing of all of the acts attributed to him and contends only that the calf was not a stolen one but that it belonged in fact to the Bells, who were codefendants. The state did not attempt to prove who the owner of the calf was. At the trial the Bells testified that the calf was theirs. This, however, was impeached by the state by their previous confessions.

The appellant assigns as error the court's refusal to give an instruction for a directed verdict; denial of appellant's motion for nonsuit; refusal to grant appellant's motion for a directed verdict; denial of appellant's motion for a new trial; the entering of the judgment on the verdict; the refusal of the court to grant the motion of Edith Bell for permission to change her plea from guilty to not guilty; and the exclusion from the evidence of Edith Bell's motion to change her plea.

In support of these assignments of error, the appellant contends that there was a failure of proof on the part of the state. He invokes Rem.Rev.Stat. § 2151, which reads: 'Confession as evidence. The confession of a defendant made under inducement, with all the circumstances, may be given as evidence against him, except when made under the influence of fear produced by threats; but a confession made under inducement is not sufficient to warrant a conviction without corroborating testimony.' (Italics ours.)

He contends that the defendant's confession was made under the influence of fear produced by threats and that the confession was made under inducement and that there was no corroborating testimony as required by statue which would sustain the conviction. The testimony upon which these contentions are made consisted of statements relating to the solitary confinement for three days and nights of the defendant, with the electric lights burning so that he could not sleep; being called a liar; assurance of the sheriff's friendship and help if he would sign the confession; and, generally speaking, what might be termed an overreaching of the defendant.

In support of his contention, appellant cites State v Miller, 61 Wash. 125, 111 P. 1053, Ann.Cas.1912B, 1053; State v. McCullum, 18 Wash. 394, 51 P. 1044; State v. Susan, 152 Wash. 365, 278 P. 149; State v. Bestolas, 155...