122 Wash. 562 | Wash. | 1922
— D. N. Schoonover and Owen Baker were convicted of the crime of grand larceny, under an information charging them with taking from one Peter Marinoff, and converting to their own use, one hundred and sixty-five bottles of intoxicating liquor and one hundred dollars in money, the property of Marinoff. From the judgment of conviction, Schoonover appeals.
The information charged, and the evidence tended to show, that the property was taken by trick and device. It appears that, early in the evening on which the offense was committed, Baker met one Cunningham at a railway depot in the city of Tacoma, and inquired of him where intoxicating liquor could be procured. Cunningham answered that he had none himself, but could take him to a person he thought could supply it. Baker and the witness then got into an automobile and drove to a place where one Tony Pelusso was found. Pelusso and Baker then entered into negotiations for liquors, Baker saying that he would take any quantity up to fifteen or sixteen eases. Pelusso said the liquor would be furnished by a friend of his, and that he did not know how much this friend had on hand, but he would have him deliver such quantity as he possessed. The friend subsequently proved to be the Peter Marinoff above mentioned. A time and place was appointed for the delivery, and the parties separated.
Sometime after eight o’clock of the same evening, Cunningham again met Baker at the depot, from
The first contention on the appeal is that the court erred in submitting’ to the jury the question of the
It is argued that this provision of the Federal act necessitates a conclusion different from that adopted by us, as our statute does not contain the quoted words. We cannot think, however, that this difference in the wording of the statutes in any way affects the principle upon which the rule is rested. The state punishes the wrongful taking of personal property belonging to, or in the possession of, another because of the offense against the majesty of its laws and because of the inherent wickedess and criminality of the act, as well as because of the wrong done to the individual whose property is taken. Stated in another way, the state punishes larceny because it is larceny, and, that the guilty may not escape, it will treat any form of personal property having actual value as having value for the purposes of larceny, notwithstanding it may be unlawful for the possessor to have it in possession.
The case of People v. Spencer, 201 Pac. (Cal.) 130, is cited to us as a case decided since the enactment of the national prohibition act, holding that there cannot be larceny in the wrongful taking of intoxicating liquors since the passage of that act." But an examination of • the case will show that the court pursued the line of reasoning adopted in the cases opposed to our own case of State v. Donovan, supra, and that its reasoning, if followed, would have required a contrary conclusion in that case. It was not rested solely on the declaration in the Federal act to the effect that no property rights exist in intoxicating liquors held for unlawful purposes. A case decided since the passage of the act, and sustaining our view, is People v. Wilson, 298 Ill. 257, 131 N. E. 609.
It is next asserted that there was no competent proof of value of the property taken sufficient to make the offense grand larceny. A witness testified that it not only had a value far in excess of the statutory requirement for grand larceny, but that it had a market value in excess of that sum. The argument, however, is that, since the property was the subject of outlawry by both the state and the national laws, it could have no value of any kind at the place and time of its taking. But this does not follow. That the property had no value in the market overt for the purposes of barter and sale is doubtless true. But the evidence abundantly shows
It is further contended that the court unduly abridged the cross-examination of the witness Marin-off as to the ownership of the property. After the witness had testified that he owned the property, and that it had been taken before he had parted with its possession, the appellant sought to cross-examine him as to his source of title, the manner by which and from whom he had obtained it, and the like. These questions the witness declined to answer, and the court refused to compel him so to do. But we find no error in this. It is well settled that the ownership of stolen property in cases of larceny may be laid in the real owner, or laid in the person in whose possession the property was at the time of the theft. (17 R. C. L. 61.) Here it was shown that the property was taken from the possession of the person alleged in the information to be the owner. This was-sufficient to establish this branch of the offense. It would have been no defense had the witness testified that he had been guilty of a crime in obtaining it, or that the actual ownership was in another, and the court was not required to enter upon these collateral inquiries. Nor can we see how his credibility would have been affected by answers to the effect that he was a criminal. That he was engaged in a criminal transaction and was, in fact, a criminal was patent without further testimony, and seemingly it
On cross-examination of one of the state’s witnesses the witness was asked as to the number of times he had talked the case over with the prosecuting attorney. To this question the prosecuting attorney interposed an objection on the ground of immateriality, and in the colloquy which followed between the court and the prosecuting attorney, the court remarked in substance that, notwithstanding the attorney would have been derelict in his duty had he not talked to the witness concerning his testimony, the question was nevertheless proper, and permitted the witness to answer. This remark of the court is challenged as a comment on the evidence in violation of the constitutional inhibition relating thereto. We cannot so regard it. The justness of the statement cannot be questioned, and it could have conveyed to the jury no knowledge that they did not otherwise possess. Whether a comment or not, therefore, the statement was without prejudice to the defendant, and it is only prejudicial comment of which he can complain.
Finally, it is objected that the court erred in overruling the motion for a new trial. The motion was based on affidavits tending to show an alibi. They were to the effect that the appellant was seen in the lobby of a hotel in the city of Seattle as late as half-past seven o’clock on the evening of the day the crime was committed. As the state’s evidence fixed the time of the crime as between half past eight and nine o’clock, it is argued that these affidavits strongly support the appellant’s claim of mistaken identity, as he could not have possibly reached the scene of the crime between half-past seven and the latest time fixed as the happening of the offense. But notwithstanding
But there are other reasons for concluding that the state’s witnesses were not mistaken. The appellant, Schoonover, had formerly been a member of a police force. He was positively identified as one of the participants by all of the state’s witnesses who were present at the scene of the crime. The affidavits state that Baker was with him when he was seen in the hotel
The judgment is affirmed.
Parker, 0. J., Main, and Tolman, JJ., concur.