State v. Westphal
| Decision Date | 06 June 1963 |
| Docket Number | No. 36762,36762 |
| Citation | 62 Wn.2d 301,382 P.2d 269 |
| Parties | The STATE of Washington, Respondent, v. Martin Robert WESTPHAL, Appellant. |
| Court | Washington Supreme Court |
Lyon, Kohls & Beaulaurier, Yakima, for appellant.
Lincoln Shropshire, Pros. Atty., Walter B. Dauber, Deputy Pros. Atty., Yakima, for respondent.
A jury having found defendant guilty of second degree burglary, he appeals from a judgment and sentence of not more than 15 years in the penitentiary.
First, defendant urges that he was charged by information rather than by an indictment by a grand jury which, he claims, contravenes his constitutional rights as provided by the fifth amendment to the Constitution of the United States.
A defendant may be charged in the state of Washington either by indictment by a grand jury or by an information filed by the prosecuting attorney. Washington Constitution Art. 1, § 25; RCW 10.37.015; RCW 10.37.026; In re Wilburn v. Cranor, 40 Wash.2d 38, 240 P.2d 563 (1952) and authorities cited; In re Payne v. Smith, 30 Wash.2d 646, 192 P.2d 964 (1948) and authorities cited; State v. Nordstrom, 7 Wash. 506, 35 P. 382 (1893).
Second, defendant contends the court erred when it submitted issues of fact to a jury selected prior to arraignment on the information charging the crime for which the jury was empaneled to try him.
The record discloses the following: the jury panel was sworn on voir dire and twelve prospective jurors drawn. Defendant was then arraigned in chambers out of hearing of the jury. Thereafter a jury was duly empaneled and sworn.
The amended information is the same as the original except for the deletion of the words 'doing business as retail hardware store.' No objection was made by defendant to the procedure.
The rationale of our decision in State v. Lane, 37 Wash.2d 145, 222 P.2d 394 (1950) is dispositive of defendant's contention; therein this court held that the fact that an accused was not arraigned upon an amended information until after the jury had been empaneled and sworn was not prejudicial error, where there was no claim of surprise or request for a continuance. In the instant case, the jury was actually empaneled and sworn after arraignment. $Third. Shortly after midnight on April 14, 1962, the Yakima police found defendant and his son hiding behind some building materials on the second floor of the Yakima Hardware Company. Entry to the building had been gained through a broken window.
Defendant's next two assignments of error challenge the sufficiency of the evidence to sustain the verdict and the propriety of the court's instruction No. 5.
RCW 9.19.030 provides:
'Every person who shall unlawfully break and enter or unlawfully enter any building or structure enumerated in RCW 9.19.010 and 0.19.020 shall be deemed to have broken and entered or entered the same with intent to commit a crime therein, unless such unlawful breaking and entering or unlawful entry shall be explained by testimony satisfactory to the jury to have been made without criminal intent.' (Italics ours.)
Instruction No. 5 is based upon and is consistent with the statute.
Defendant testified in his own defense. He testified that he did not intend to commit a burglary; that the purpose of the escapade was to teach his son a lesson.
Defendant's son testified for the prosecution. 1 He said that he 'broke the glass' in order for him and his father to enter the building. On cross-examination, he testified as follows:
'
Thus it became a question for the jury to determine whether defendant had explained by satisfactory testimony that his entry had been made without criminal intent. Inherent in the jury's verdict is the conclusion that it believed the son and not the father.
We find instruction No. 5 proper, and the evidence sufficient to support the verdict.
Fourth. The court admitted in evidence a flashlight found at the place defendant...
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Smith v. State
...admissibility. See State v. Hill, 193 Kan. 512, 394 P.2d 106; Gouard v. Oklahoma (Cr.Ct. of App. of Okl.), 335 P.2d 920; State v. Westphal, 62 Wash.2d 301, 382 P.2d 269, cert. denied, In People v. Cullen, 37 Cal.2d 614, 234 P.2d 1, a murder case, the Supreme Court of California Westphal v. ......
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State v. Vinsonhaler, No. 36235-0-II (Wash. App. 8/11/2009), 36235-0-II.
...See also State v. Ng, 104 Wn.2d 763, 774-75, 713 P.2d 63 (1985) (due process does not require a grand jury indictment); State v. Westphal, 62 Wn.2d 301, 302, 382 P.2d 269 (article 1, section 25 of the Washington constitution does not contravene the rights protected under the Fifth Amendment......
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State v. Vinsonhaler
... ... States Constitution), aff'd , 164 U.S. 705, 17 ... S.Ct. 997, 41 L.Ed. 1183 (1896). See also State v ... Ng , 104 Wn.2d 763, 774-75, 713 P.2d 63 (1985) (due ... process does not require a grand jury indictment); State ... v. Westphal , 62 Wn.2d 301, 302, 382 P.2d 269 (article 1, ... section 25 of the Washington constitution does not contravene ... the rights protected under the Fifth Amendment to the federal ... constitution), cert. denied , 375 U.S. 947 (1963) ... 2 ... Certificate of ... ...
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State v. Kanistanaux
...232; and the cases following it. Consequently, under the rule of those cases, and the rule set forth in our own cases of State v. Westphal, 62 Wash.2d 301, 382 P.2d 269; In re Wilburn v. Cranor, 40 Wash.2d 38, 240 P.2d 563; In re Payne v. Smith, 30 Wash.2d 646, 192 P.2d 964, the trial court......