State v. Willis, 31775

• Decision Date: 04 August 1952
• Docket Number: No. 31775,31775
• Citation: 246 P.2d 827,40 Wn.2d 909
• Court: Washington Supreme Court
• Parties: STATE, v. WILLIS.

Page 909

40 Wn.2d 909

246 P.2d 827

STATE, v. WILLIS.

No. 31775.

Supreme Court of Washington, Department 2.

Aug. 4, 1952.

Orvin H. Messegee, Seattle, for appellant.

Charles O. Carroll, Thomas P. Keefe, Seattle, for respondent.

FINLEY, Justice.

This appeal is from (a) the denial of a motion in arrest of judgment or for a new trial; and (b) the judgment in a criminal action wherein appellant was found guilty of burglary in the second degree.

At about six o'clock, A.M., on October 15, 1949, the Belmont Sundry Drug, in Seattle, was burglarized. A television set, nine or ten dollars in small change, and two one-dollar bills were taken. Entry unquestionably was effected by breaking the glass in the front door of the store. Apparently, the state contended that the burglar walked upon or through the shattered fragments of glass, and stepped through the opening smashed in the door. The attention of several witnesses was attracted by the sound of crashing glass. There was partial daylight when the burglary occurred; the store was well lighted inside, and there was a bright street light outside of the store. Three witnesses testified to seeing a car parked in front of the drug store and watching it coast away down the hill. The consensus seemed to be that the car was dark colored, not black, but probably dark brown or dark green. These same witnesses described the car as a sedan, about a 1939 model, and with a strange-colored license plate. One witness said he saw the burglars, and that one came out of the store and got into a car; the other jumped out of the car and ran away. The witness did not identify appellant as one of the men.

At about 6:20 on the same morning, appellant was arrested approximately two or three miles from the scene of the burglary by a police officer. At the time, appellant was alone, driving a light green 1941 Ford sedan. The officer had followed him for several blocks, keeping the green sedan in view from a distance of half a block to a block, except for a period of four or five seconds when appellant turned east on Lane Street from Corwin Place, and into a dead-end street. Shortly after the arrest, another police car arrived, and in about ten minutes was followed by a tow truck. Appellant was taken to the police station in one of the patrol cars and appellant's car was picked up by the tow truck. The driver of the tow truck testified that he noticed a 'shiny object' resembling a piece of finished wood as he was leaving the scene of the arrest; that, as soon as he had towed appellant's car to the storage garage, he returned to the scene of the arrest, arriving there about seven o'clock; that, at the place where he had seen the 'shiny object,' he found the television set. It was about thirty or forty feet from the corner of Corwin Place and Lane Street, and about two or three feet from a fence which bordered the south side of Lane Street. The fence was several feet back, or away from the curb line. The finish of the television set was damaged, there was a chip off of one corner, but it proved to be in perfect operating condition.

In appellant's possession, the police found approximately six dollars in small change and a one-dollar bill. Appellant said he had acquired this money in a poker game. At the trial several defense witnesses testified concerning the alleged poker game and appellant's winnings. Apparently, no police investigation was made as to this aspect of appellant's story. Particles of glass were found in appellant's car and imbedded in the soles of his shoes. The state introduced no evidence to show that the particles of glass had actually come from the door of the store, although there was evidence indicating that a laboratory examination by the F.B.I. had been conducted apparently for that purpose. Appellant and his mother explained the presence of the particles of broken glass on his shoes and in the car by testifying that appellant had hauled scrap glass in his car about a week before his arrest. They testified that the mother uses large pieces of glass to cover her garden plants; that these pieces get broken, and she has her son haul the fragments away. This testimony was uncontradicted.

Appellant contends that the trial court erred in, (a) holding that the evidence was sufficient to go to the jury, and that it was sufficient to sustain the judgment; (b) refusing to instruct the jury that they could not consider certain testimony of a police officer as proof of the truth of a report from which he read; and (c) refusing to give appellant's proposed Instruction No. 9.

This case has been tried three times in the superior court for King county. The question of the sufficiency of the evidence was before us previously in an appeal from the second trial. State v. Willis, 37 Wash.2d 274, 223 P.2d 453. There we held that, although the evidence to a great extent was circumstantial, it was sufficient upon which to base a verdict of guilty. We have reviewed very carefully the statement of facts of the third trial, from which the present appeal is taken. It is our opinion in the present instance, as in the previous appeal, that there is some evidence, competent and substantial, tending to sustain the verdict.

During the cross-examination by appellant's counsel of one of the state's witnesses, A. R. Nelson, a detective in the Seattle Police Department, the following took place:

'Q. At that time, you knew the report indicated that two men had burglarized the store, is that right? A. I did not know that.

'Q. The report indicated that, and you knew the report indicated that, did you not? A. My report is a little conflicted. My report shows one white man, twenty-five, five foot ten, one hundred fifty pounds, slim build, dark clothing, that's all.

'Q. That's your report, where did that...