71 Wash. 181 | Wash. | 1912
The defendant and one Kastriner were jointly tried and convicted on a charge of knowingly having in their possession a forged instrument with an intent to utter it. The defendant has appealed from the judgment entered
Seattle, Wash., 2-4-12, 190 No. 18.
THE STATE BANK OF SEATTLE
Pay to the order of Henry B. Shaw, $24.80
Twenty four and 80-100 Dollars.
Not over Twenty Five Dollars $25$
Seattle Cornice Works
W. M. Bryant.
Two witnesses, Speight and Yank, jailors at the King county jail, testified in substance that Kastriner called at the jail on the date charged in the information at about the hour of four o’clock in the afternoon, and left a library book inclosed in a paper, with directions to hand it to appellant; that the book was opened and found to contain six blank checks on the State Bank of Seattle; that the book with the checks was rewrapped and handed to the appellant in his cell; that Kastriner returned about an hour later and requested permission to see the appellant; that he and the appellant were permitted to talk privately in the jail for about fifteen minutes, when the witness Beebe, a deputy sheriff, searched Kastriner and found in his inside coat pocket the check in question, and four other checks drawn on the State Bank of Seattle and stamped and signed in the same manner; that a sixth check partially filled out was found on appellant’s person, and that a stamp pad was found in his cell. The witness Beebe testified, that he took a position without the jail where he could observe the appellant and Kastriner; that he saw the former take some papers from his pocket that looked like checks and hand them to the latter, who placed them in his inside coat pocket and took a check book out of his pocket, and handed it to the appellant who put it in his pocket; that when Kastriner was searched the five drawn checks were the only papers found
It is true that the appellant and Kastriner did not both have the actual physical possession of the check at the same time. There is, however, abundant evidence that the two were acting in concert, with a common criminal design. The declarations, therefore, of one are admissible against the other, and the possession of the one was the possession of both. Where two or more persons conspire to commit a criminal act, the acts and declarations of each in furtherance of the common design are the acts and declarations of all. State v. Baker, 69 Wash. 589, 125 Pac. 1016; State v. Williams, 62 Wash. 286, 113 Pac. 780; State v. Dilley, 4 Wash. 207, 87 Pac. 133; State v. McCann, 16 Wash. 249, 47 Pac. 443, 49 Pac. 216.
There were no exceptions to the instructions. In the absence of exceptions, we have uniformly held that the instructions will not be reviewed. State v. Hatch, 63 Wash. 617, 116 Pac. 286. Counsel argue that the rule should be relaxed because the appellant was defended by counsel appointed by the court. This cannot change the rule. The counsel may have been influenced by the fact that the evidence of the appellant’s guilt was so conclusive that a new trial would have been barren of benefit to him.
It is further complained that the instructions were oral. Counsel stipulated that the court might instruct orally. It is argued that the statute requiring instructions to be in writing is mandatory, and that its provisions cannot be waived in felony cases. The rule is that such requirements
The appellant was sentenced for a term of not less than ten years nor more than twenty years. The court had the power to fix the maximum term at twenty years, but the statute' expressly limits the minimum term to “not less than six months nor more than five years.” Rem. & Bal. Code, § 2281. Where a court has exceeded its power in imposing a sentence, a new trial will not be ordered, but the case will be remanded to the trial court for the imposition of the proper sentence and judgment. State v. Gilluly, 50 Wash. 1, 96 Pac. 512.
Remanded, with directions to enter a judgment in harmony with this opinion.
Mount, C. J., Parker, Crow, and Chadwick, JJ., concur.
