State v. Wappenstein

• Decision Date: 18 March 1912
• Citation: 67 Wash. 502,121 P. 989
• Court: Washington Supreme Court
• Parties: STATE v. WAPPENSTEIN.

121 P. 989

67 Wash. 502

STATE v. WAPPENSTEIN.

Supreme Court of Washington

March 18, 1912

Department 2. Appeal from Superior Court, King County; J. T. Ronald Judge.

C. W Wappenstein was convicted of receiving a bribe, and he appeals. Affirmed.

Morris & Shipley and Harold Preston, for appellant.

John F Murphy, George H. Rummens, and H. B. Butler, for the State.

ELLIS J.

The defendant was indicted for the crime of asking for, accepting, and receiving a bribe. The indictment charged that the defendant, being chief of the police department of the city of Seattle, asked for, accepted, and received from Gideon Tupper and C.J. Gerald $1,000 as compensation, gratuity, reward, and bribe, upon an agreement, understanding, and promise that he would thereby be influenced, governed, and controlled in the discharge of his official duty and action upon matters then pending which might be brought before him, and, in consideration thereof and of that agreement, did in violation of his official duty permit and allow Tupper and Gerald jointly or severally to conduct in violation of law two houses of prostitution, designated as the 'Paris House' and the 'Midway' in the city of Seattle. A motion to quash the indictment was denied. A demurrer thereto was overruled. The defendant entered a plea of not guilty, was tried, and the jury disagreed. A second trial was had resulting in a verdict of guilty. Motions for a new trial and in arrest of judgment were denied by the court. Judgment was entered and sentence imposed. From the judgment and sentence this appeal was taken.

There are numerous assignments of error; but they are grouped under eight heads in the briefs, and will be so treated in this opinion.

1. It is first contended that the demurrer to the indictment should have been sustained in that it charged more than one offense. It is argued that section 2321, Rem. & Bal. Code, makes the act of soliciting and the act of accepting a bribe separate and distinct offenses. We find no support for this position. While the statute makes either of these actions sufficient to constitute the crime, they are but alternative constituents of the same statutory offense. They may be laid conjunctively in a single count, and proof of either will sustain the charge. 'It is a well-settled rule of criminal pleading that when an offense against a criminal statute may be committed in one or more of several ways, the indictment may, in a single count, charge its commission in any or all of the ways specified in the statute. So where a penal statute mentions several acts disjunctively and prescribes that each shall constitute the same offense and be subject to the same punishment, an indictment may charge any or all of such acts conjunctively as constituting a single offense.' 22 Cyc. 380; State v. Holedger, 15 Wash. 443, 46 P. 652; State v. Ilomaki, 40 Wash. 629, 82 P. 873; State v. Adams, 41 Wash. 552, 83 P. 1108; State v. Smalls, 11 S.C. 262; State v. Wynne, 118 N.C. 1206, 24 S.E. 216; People v. Gosset, 93 Cal. 641, 29 P. 246; State v. Beebe, 115 Iowa, 128, 88 N.W. 358; State v. Marion, 14 Mont. 458, 36 P. 1044; Hale v. State, 58 Ohio St. 676, 51 N.E. 154; Cranor v. Albany, 43 Or. 144, 71 P. 1042; State v. Donaldson, 12 S.D. 259, 81 N.W. 299; Boldt v. State, 72 Wis. 7, 38 N.W. 177. No authority to the contrary has been cited. The demurrer was properly overruled.

2. It is contended that the court erred in admitting testimony of Gerald as to conversation and transactions between himself and Tupper not in the presence of the defendant. Gerald had testified as to a conversation between himself and the defendant in which the defendant stated that it would be the policy to open up the restricted district; that the defendant had then said, 'There will be a chance for all of us to make some money'; that the witness had suggested to the defendant that he had a man he 'wanted to get on down there'; that Tupper was the man; that defendant expressed a desire to meet Tupper; that arrangements were then made for a meeting between Tupper and defendant; that a few days afterwards the three met in Gerald's saloon and the introduction took place; that the defendant then told Tupper to 'go and get the Midway'; that Gerald then went away leaving Tupper and the defendant together. This was after announcement that defendant would be chief of police, but before he actually assumed that office. Gerald was then permitted, over objection, to testify that Tupper told him afterwards that he had secured the Midway; that he could also get the Paris House; that, as the witness remembered, Tupper told him that the defendant had instructed Tupper to get the Paris House; that Tupper said the defendant told him that he would have to pay to the defendant $10 for each woman; that the witness said to Tupper that, 'It was pretty strong, but I guessed he would have to stand for it'; that prior to that time an agreement was made between Gerald and Tupper to secure the crib houses and divided the proceeds of the business equally; that after these conversations Tupper paid Gerald his share once a month; and that on making these various payments Tupper tole him that he (Tupper) had paid to the defendants 'some months $500, sometimes $600 or $700, * * * at the rate of $10 a woman.'

It is first objected that this evidence should have been excluded as hearsay. This is not tenable. It was admissible together with the evidence of what took place in the defendant's presence as tending to prove the unlawful agreement, combination, or conspiracy, alleged in the indictment as one of the elements of the crime charged. There was already evidence sufficient to establish prima face an agreement to open and operate houses of ill fame contrary to law for gain. The antecedent agreement between Gerald and Tupper, the meeting of Gerald with the defendant, the defendant's suggestion that there was a chance for all to make some money, Gerald's suggestion that he wanted to get Tupper 'on down there,' and the subsequent meeting of the three, and defendant's direction to Tupper to 'get the Midway,' could have no other meaning or purpose. The minds of the parties had met understandingly on the common design. The conspiracy is the natural interpretation of these events. There was thus already sufficient evidence proper to go to the jury tending to establish the conspiracy.

It is well established that where several have united together for an illegal purpose, any act done by one of them, or any of them, in prosecution of that common purpose or design, is in the eye of the law the act of all, and evidence of such act is admissible against all or any of them. The same is true of individual declarations touching the common design. 'The proof of conspiracy which will authorize the introduction of evidence as to the acts and declarations of the co-conspirators may be such proof only as is sufficient, in the opinion of the trial judge, to establish prima facie the fact of conspiracy between the parties, or proper to be laid before the jury, as tending to establish such fact.' Spies v. People, 122 Ill. 1, 238, 12 N.E. 865, 980 (3 Am. St. Rep. 320). 'Upon this subject, Mr. Greenleaf has said: 'A foundation must first be laid by proof sufficient, in the opinion of the judge, to establish prima facie the fact of conspiracy between the parties, or proper to be laid before the jury as tending to establish such fact. The connection of the individuals in the unlawful enterprise being thus shown, every act and declaration of each member of the confederacy, in pursuance of the original concerted plan, and with reference to the common object, is, in contemplation of law, the act and declaration of them all, and is therefore original evidence against each of them. It makes no difference at what time any one entered into the conspiracy. Every one who does enter into a common purpose or design is generally deemed, in law, a party to every act which had before been done by others, and a party to every act which may afterwards be done by any of the others in furtherance of such common design.' 1 Greenl. Ev.§ 111.' Card v. State, 109 Ind. 415, 418, 9 N.E. 591, 592, 593; McKee v. State, 111 Ind. 378, 12 N.E. 510; People v. McCann, 247 Ill. 130, 93 N.E. 100, 20 Ann. Cas. 496; U.S. v. Breese (C. C.) 173 F. 402. The evidence complained of was admissible as primary evidence under the substantive law of conspiracy. It was not obnoxious to the rule against hearsay. Wigmore on Evidence, § 1797.

It is next urged that this evidence of the acts and declarations of Gerald and Tupper was inadmissible because there was no prior consummated corrupt agreement or conspiracy. What we have said of the prior objection effectually disposes of this. Gerald testified that he and Tupper had, some six weeks prior to the first conversation with the defendant, agreed with each other that if H. C. Gill was elected mayor they would rent crib houses for the purpose of prostitution; Tupper to be manager, and Gerald a silent partner. After Gill's election, the conversation with the defendant took place. As we have seen, this evidence established prima facie a corrupt agreement. True, there was no evidence of a formally expressed agreement. Conspiracies are seldom susceptible of such proof. But there was evidence of a meeting of the minds a unity of design, and a co-operation of conduct which could only mean that there was such an agreement. This was sufficient foundation for the admission of evidence of subsequent independent acts and declarations of each of the parties as against any one of them. 'In one of its charges the court told the jury, in substance, that it was not essential to the formation of a conspiracy that there should have been any formal agreement...