State v. Zupan

• Decision Date: 30 December 1929
• Docket Number: 21601.
• Citation: 283 P. 671,155 Wash. 80
• Parties: STATE v. ZUPAN.
• Court: Washington Supreme Court

283 P. 671

155 Wash. 80

STATE v. ZUPAN.

No. 21601.

Supreme Court of Washington

December 30, 1929

Department 2.

Appeal from Superior Court, Spokane County; C. G. Jeffers, Judge.

Tony Zupan was convicted of unlawfully possessing intoxicating liquor, and of prior convictions on liquor charges, and he appeals. Affirmed.

Robertson Paine & Schaaf, of Spokane, for appellant.

Charles W. Greenough and Ralph E. Foley, both of Spokane, for the State.

MILLARD J.

The defendant was charged by information with the crime of unlawful possession of intoxicating liquor and with two prior convictions as follows:

'That the said defendant, Tony Zupan, in the County of Spokane State of Washington, on or about the 5th day of January, 1928, then and there being, did then and there wilfully and unlawfully have in his possession intoxicating liquor, to wit: Moonshine whisky, with intent then and there to sell, barter and exchange the same:

'That the said defendant, Tony Zupan, on the 24th day of November, 1926, in cause No. 9276, was convicted of the crime of intoxicating liquor in possession with intent to sell; * * *

'That the said defendant, Tony Zupan, on the 17th day of January, 1923, in cause No. 8193, was convicted of the crime of having in possession intoxicating liquor. * * *'

From the judgment and sentence pronounced against him on the verdict of guilty on all three counts, the defendant appeals.

About midnight of January 5, 1928, two officers of the dry squad of the city of Spokane were hidden in a garage in that city near a certain hotel awaiting the arrival of an automobile, they having been informed that a delivery of whisky would be made at that point by automobile. One of the officers testified: 'We went there on a tip that if we would go there between the hours of eleven and twelve, or from that up to one o'clock, that we would see them unload whisky.'

From their point of observation in the garage the two officers for 10 or 15 minutes watched the appellant, who was nervously walking to and fro in front of the hotel. A large automobile drove within 10 feet of the curbing and stopped. The appellant ran or hastily walked to the automobile, took a suitcase therefrom, and ran or walked hurriedly back to the hotel and up the stairway of same. The automobile immediately following the withdrawal therefrom of the suitcase turned around in the middle of the street and was rapidly driven away. One of the officers tried to overtake the automobile, but was unsuccessful. On his return to the hotel he found the other dry squad officer and the appellant. When one of the officers endeavored to overtake the automobile, the other officer ran to apprehend the appellant. The latter officer recognized the appellant while pursuing him:

'Q. Did you recognize Tony Zupan before you caught up with him? A. I did.

'Q. Were you acquainted with Tony Zupan? A. Yes, sir, I am.

'Q. You have talked to him before? A. I have.'

Appellant was overtaken by the officer on the first landing of the stairway of the hotel. One of the officers testified that when the appellant was questioned as to the contents of the suitcase he replied, 'Well, I guess you fellows know what it is.' The other officer testified that the appellant said, 'You know.' The suitcase was opened and found to contain three one-gallon jugs of moonshine whisky. Whether the appellant recognized the officer, and voluntarily surrendered the suitcase, the record does not disclose. The officers did not have a warrant for the arrest of appellant. The arrest of appellant and the seizure and search of the suitcase were made without a warrant.

The officer who pursued the automobile, and returned to the hotel where appellant and the other officer were, testified on direct examination:

'Q. Did you have any conversation with the defendant at that time--anything that would be relevant in this matter? A. Well, we had a conversation. I don't just remember all that was said.

'Q. Did he say anything in relation to having the liquor in his possession? A. As I remember it, in speaking to him about it he said, 'Well'--we asked him what he had in his suitcase and he said, 'Well, I guess you fellows know what it is.''

The officer who captured the appellant on the stair landing testified:

'Q. Will you tell the jury in your own words just what you observed there? A. We went into the vicinity of Trent and Brown and stayed there for some time, and this man, Tony Zupan, came up pretty near to the corner and walked back and forth and looked up and down Trent, and kind of nervous, and after a while a big automobile pulled up and he rushed over to the car and got a suitcase and started for the hotel, and I started after him and caught him in the stairway, on the landing--the first landing of the stairway. * * *

'Q. Just go ahead and tell what you did then? A. I asked him what he had in the suitcase and he said, 'You know.' He said he hadn't carried a suitcase for five weeks. And Harry Alderson came in and we opened the suitcase--the suitcase was opened by one of us. I don't remember which one, and contained moonshine whisky.

'Mr. Robertson: If the court, please, I move to strike that as having been given too quickly for me to object. It comes under the general objection that I made before, as to the violation of the defendant's constitutional rights.

'The Court: The objections will be overruled and exception allowed.

'Q. What were the contents of the suitcase you refer to?

'Mr. Robertson: I would like to ask one question, if I may? (By Mr. Robertson) Q. Did you have a warrant for the arrest of the defendant? A. No, sir.

'Q. Did you have any search warrant? A. No, sir.

'Mr. Robertson: Now, I desire to object to the question upon the ground that his answer would be in violation of the defendant's constitutional rights, and that the search and seizure of any suitcase at that time would be in violation of his constitutional rights.

'The Court: The objection will be overruled and exception allowed. A. Moonshine whisky.

'Q. What was the whisky contained in? A. Three one-gallon jugs,'

Appellant was taken into custody and complaint made charging him with possession of intoxicating liquor with intent to sell in violation of a city ordinance. Some days later an information was filed charging the appellant with the crime of unlawful possession of intoxicating liquor with intent to sell the same and with two prior convictions, and the pending case in the police court was dismissed.

The denial of the motion to suppress the evidence consisting of three one-gallon jugs of moonshine whisky seized by the officers of the dry squad without a search warrant, and the introduction of the seized liquor in evidence upon the trial, are assigned as error.

Motion was seasonably made to suppress the evidence in the case. Affidavits supporting and resisting the motion were submitted by the appellant and the state. To review the ruling of the trial court as to the legality of the seizure and search as examination of the affidavits is essential. The affidavits are incorporated in the clerk's transcript, but are not made a part of the record by statement of facts. We note that counsel for appellant state in their brief, with reference to the affidavits, 'Counsel have stipulated that they may be treated and referred to as if embodied in the statement of facts.'

The rule is that affidavits not made a part of the statement of facts cannot be considered on appeal. Stipulation of counsel that affidavits incorporated in the clerk's transcript may be deemed included in the statement of facts is not a compliance with that rule.

The seized liquor was properly admitted in evidence. It was sufficiently identified, and from our examination of the statement of facts (the appellant did not testify nor was any evidence offered in his behalf) we are convinced that the arrest of appellant was lawful and that the liquor was not unlawfully seized.

Counsel for appellant argue that the officers were not justified in arresting the appellant upon the theory that he was committing a misdemeanor in their presence. 'That such was their theory is shown by the fact that they charged him with a misdemeanor in violation of the city ordinance, and did not file a state charge against him until thirteen days later, when he was again arrested, but this time on a warrant.' Appellant's counsel further contend that the arrest would not be legal even if it had been made for the felony of bootlegging, as the circumstances were sufficient to give rise merely to a suspicion, and cite State v. Hughlett, 124 Wash. 366, 214 P. 841, 842 in which is enunciated the rules which should govern in determining the legality of an arrest, either for a misdemeanor or a felony. In that case we said: 'It is contended, in the first place, that the officers had no authority to take the whisky, because they had no authority to make the arrests without a warrant for that purpose. Circumstances, however, may arise where it is not only within the power of the police officers, but it is their duty, to make arrest without any warrant therefor. In misdemeanor cases the officer may not arrest without a warrant therefor, except where the crime is being committed in his presence, or where he had actual knowledge that the person about to be arrested committed the crime. But in cases amounting to a felony if the officer believe, and have good reason to believe, that a person has committed, or is about to commit, or is in the act of committing the crime, then he may arrest without a warrant. But the arresting officer must not only have a real belief of the guilt of the person about to be arrested, but such belief must be based upon reasonable grounds. Proper cause...