State v. Vaughn
| Decision Date | 28 March 1932 |
| Docket Number | 23587. |
| Citation | 9 P.2d 355,167 Wash. 420 |
| Parties | STATE v. VAUGHN et al. |
| Court | Washington Supreme Court |
Department 1.
Appeal from Superior Court, Spokane County; Wm. A. Huneke, Judge.
William J. Vaughn, alias Samuel Adam Housh, was convicted of second degree burglary and of grand larceny, and he appeals.
Reversed and remanded for a new trial.
W. B Mitchell, of Spokane, for appellant.
Chas W. Greenough and Ralph E. Foley, both of Spokane, for the State.
The defendants William J. Vaughn, whose true name is Samuel Adam Housh, and George A. Miller, were jointly charged in each of counts I and II of the information with the crime of second degree burglary, in that on the 15th day of March, 1931, they did break and enter two railway cars, the property of the Great Northern Railway Company, while standing in its railway yards at Hillyard, Wash. In count III they were charged with the crime of grand larceny, in that on the same day they did steal and carry away certain merchandise or property of the railway company of the value of $155.67. On May 19, 1931, each of the defendants, being represented by their attorney, Mr. Mitchell, entered a plea of not guilty. Two days later the defendant Miller, in the absence of his counsel, appeared in court with the prosecuting attorney withdrew his plea of not guilty, and entered a plea of guilty; the sentence, however, being deferred until June 26 following. Miller testified as a witness on behalf of the state at the time of the trial. A verdict of guilty was returned against Housh on all three counts. June 26 both defendants were sentenced to serve a term in the state penitentiary; the sentence of the former being suspended. The defendant Housh has appealed.
From the evidence the jury were warranted in finding these facts: That the appellant and Miller became acquainted with each other in 1928, at which time both were employed as switchmen by the Great Northern Railway Company, at Hillyard, where they resided with their respective families; that during the autumn of 1929, owing to business conditions, both Miller and the appellant were laid off by the railway company, the latter obtaining employment with the Milwaukee Railway Company as a switchman. But Miller, it appears, gained little or no employment from that time up to the time of his arrest, and his family, consisting of his wife and six children, were living under rather dire circumstances. At about 12 o'clock noon of March 5, 1931, the appellant went to Miller's home, and there they laid plans to break into, plunder, and steal merchandise from railway cars belonging to the Great Northern Railway Company. Accordingly, about 7 o'clock that evening, Miller went to the home of the appellant, and shortly thereafter they drove the latter's automobile to the Great Northern Railway yards at Hillyard, and remained seated therein for a period of about two hours, and until a certain branch train which runs through Dean, a small village located several miles north of Hillyard, arrived, whereupon the appellant left the automobile and walked into the railway yards. After the train departed for Dean, Miller, in accordance with the understanding between them, drove the automobile from Hillyard to Dean, and parked it underneath a viaduct near the railway depot.
Presently the appellant appeared underneath the viaduct, where Miller was waiting with the automobile, carrying merchandise consisting of cigarettes and other articles packed in boxes and sacks, and placed them in the rear seat of his car. Thereupon they returned to the appellant's home at Hillyard, arriving there about midnight. The appellant carried the merchandise into his house, and gave Miller a box of candy and four or five pounds of coffee--a portion of the loot or stolen merchandise. Some two or three days later the appellant gave Miller the sum of $21, stating at the time that this is 'your cut.' It further appears that the appellant told Miller at the time they planned to plunder railway cars that he was looking for cigarettes, as he had a place or a 'fence' where he could dispose of them. While Miller and the appellant were incarcerated at the county jail, the latter stated to him that if he (Miller) would take the 'rap,' his family would be taken care of while he was serving time.
The foregoing facts were adduced from the testimony of Miller. In addition thereto, the jury were justified in finding that Before the train left Hillyard on the night of March 15 the seal of the door of the Great Northern's railway car No. 18143 had been broken.
On the night of April 5, 1931, the appellant and Miller were arrested while in a field near the railway station at Dean, Wash., and were lodged in jail at Spokane the same evening. On the following morning Miller was taken to the office of the prosecuting attorney of Spokane county, where he confessed his guilt.
The appellant first contends that he was not accorded a fair and impartial trial. In support of this contention, it is argued that the prosecuting attorney had entered into a secret understanding with Miller whereby the latter was induced to testify on behalf of the state, in consideration for which he was to receive a suspended sentence. Miller emphatically denied he had been offered any inducement to testify on behalf of the state either by the prosecuting attorney or by any of the special agents of the railway company. He testified that of his own accord he informed the prosecuting attorney of his connection with the commission of the various crimes alleged in the information. In any event, whether Miller made his confession under inducement became a question of fact for the jury, which issue was submitted to them under proper instructions.
Nor do we find any merit in the contention that the prosecuting attorney was guilty of misconduct. True, at the time of his opening statement to the jury as to what the proof would show, he made some reference as to what was supposed to have taken place on the night of April 5, at the time when the appellant and Miller were placed under arrest. However, we are satisfied from a review of the record that the statements made by the public prosecutor as to what the proof would show were made in good faith. We have uniformly held that reasonable latitude should be allowed in the making of an opening statement to a jury. State v. Zupan, 155 Wash. 80, 283 P. 671.
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