51 Wash. 557 | Wash. | 1909
— Appellant seeks to reverse this case upon the insufficiency of the evidence to sustain the verdict, and
No instruction was given or requested upon the point now urged by counsel; but, admitting the question as properly before us, we think there was sufficient testimony, if believed by the jury, to warrant a conviction in this case. The house burglarized was unoccupied at the time. It was broken into and property was taken, thus indicating that some one was guilty of the crime of burglary. The fact that property identified as belonging to the complaining witness was found at the home of the appellant might be insufficient in itself to warrant the verdict, but there was evidence tending to show that the property, a feather bed, was not only in the possession of the appellant, but that the feathers had been removed and the tick concealed from casual observation in a barrel of dirty clothes; that appellant had in his possession several flour sacks partially filled with feathers; that he endeavored to toll an officer, who held a search warrant, out of the house on pretense of going to the cellar, after a word in a whispered undertone to his wife; that appellant and his wife first denied possession of the feather bed, and upon discovery of the tick, made conflicting statements to the officer; that tracks of a two-wheeled cart drawn by two horses were discovered in front of the house upon the return of the owner; that the cart had been stopped and from it foot tracks led to and from the house;
It is urged, however, that appellant is entitled to a new trial because the officer who executed the search warrant said upon cross-examination that the complaining witness had not, in describing the bed tick, said that it had a hole torn in it by the bed springs upon which it had been used, a fact denied upon the trial by the complaining witness; whereas, after the trial, he remembered that such statement had been made and would so testify upon a new trial. From the nature of the case, if the conviction rested upon the evidence of the complaining witness alone, there might be sufficient merit in this contention to take it out of the general rule that new trials will not be granted in order to supply evidence to sustain or impeach a witness. But the whole record shows that the complaining witness did not undertake to positively identify his property, but left that important fact to his sister, who recognized it as her own handiwork.
We are also asked to reverse the case that the evidence of one C. W. Hall, now a resident of Washington, D. C., may be obtained. He had been engaged as a clerk at a country store near the home of appellant, and, it is alleged, would testify that he sold the bed ticking, identified as the property stolen, to the wife of the appellant, a fact to which she had already testified. It is not shown that counsel who makes the affidavit has ever talked with Hall, nor does he say more than
The judgment of the lower court is affirmed.
Rudkin, C. J., Fullerton, Gose, Mount, Dunbar, and Crow, JJ., concur.