State v. Pattison

Askren, J. — Appellant, being dissatisfied with his conviction upon an information charging him not only *393 with the crime of unlawful possession of intoxicating liquor, hut with having been twice before convicted of violation of the liquor laws, brings the case here for review. Several assignments of error are urged, which maybe divided into two groups: first, error in admission of testimony; and secondly, insufficiency of the evidence at the close of the state’s case to warrant submitting the case to the jury. Several officers of Clallam county, on August 1,1924, armed with a search warrant, went to a shack where were found two men and a large quantity of intoxicating liquor. There was also a case of malt syrup and a package of hops addressed to appellant, and they bore evidence that they had come by mail. A man named Hansen was actually in charge, the other being a visitor. At the time the officers took possession of the liquor, they talked with Hansen regarding its ownership.' At the trial these officers were permitted to testify that he told them he was making the liquor for appellant and that he had told appellant he was afraid he would be caught, but was assured there was no danger. They also testified that, while they were talking with Hansen, an automobile drove close to the shack and that Hansen told them “here comes Tom (meaning appellant) after another load, and if you wait you can probably catch him. ’ ’ The person driving the car, however, was not caught at that time. Appellant was not present during any of the conversation referred to, but was arrested some time later. Timely objections were made to the introduction of this evidence. It was the contention of the state that, inasmuch as there was evidence connecting appellant with Hansen, and it appeared that they were jointly engaged in the manufacture and possession of the liquor, there was *394 such, a concert of action that the statements of one could be used against the other. The state relies upon our decisions to the effect that, where two or more persons are shown to have acted in concert, the acts and statements of each, although in the absence of the other party, are admissible against him. State v. Pettit, 74 Wash. 510, 133 Pac. 1014. The ground upon which this rule is based is that, where two or more persons undertake an enterprise, each of the parties is presumed not only to be acting for himself, but also on behalf of the other party to the conspiracy or wrongful act, and that the things said or done in furtherance of the conspiracy are properly chargeable to both. But this rule has no application where the conspiracy has come to an end and the things that are said or done are not in furtherance of the conspiracy. Especially is this true where the statements sought to be shown are made by one who made them to exculpate himself and to inculpate another. 16 Corpus Juris, 1305,1309. It is quite apparent that, when the officers made the raid, any statements made thereafter by Hansen could not be in furtherance of the conspiracy, because nothing he did or said would tend to accomplish the object for which the conspiracy was formed. State v. Nist, 66 Wash. 55, 118 Pac. 920, Ann. Cas. 1913C 409. The admission of this testimony was error, but appellant promptly cured it. Inasmuch as the package of hops and case of malt syrup found on the premises had come through the mail and were addressed to appellant, it became necessary for him to explain this seeming ownership to the jury. In seeking to deny it, he called Hansen as a witness, who testified that the liquor and malt syrup and hops were his own property and not that of appellant, and testified that appellant *395 had gotten the ingredients in Seattle at Hansen’s request and mailed them to him, but that they were addressed to appellant. Hanson assumed all responsibility for the crime in question. He was also asked by appellant’s counsel whether he had ever made the statements to the officers that the liquor was appellant’s. This he positively denied. Appellant having offered the evidence of the witness Hansen that the liquor and ingredients belonged to him (Hansen), it would then be proper for the state to cross-examine him as to whether he stated to the officers the night of the raid that the property belonged to appellant, and if he denied it the same as he did here on direct examination by appellant’s counsel, it would be proper rebuttal for the state to offer the evidence of the officers contradicting him. As far as appellant is concerned, it could make no difference whether this testimony concerning Hansen’s statements to the officers was given in rebuttal or offered as a part of the state’s case in chief. "While the proper order of proof would be to offer it in rebuttal, the only question that appellant can raise in regard to it now is whether without this evidence there was a sufficient showing by the state in chief to authorize the court in putting appellant to his defense, and this raises the second error urged by appellant. "We have carefully examined the record and are satisfied that there was sufficient evidence to go to the jury. In addition to the mailed packages found in the room, addressed to appellant, and which contained the ingredients from which the intoxicating liquor (beer) was being made, there were approximately 400 bottles of beer on hand, and the quantity thereof was sufficient to suggest that it was being manufactured for the purpose of sale. Appellant was seen several times shortly prior to the raid in a certain Ford car, and on the night *396 in question while the officers were on the premises where the raid was made, the lights of a car were seen coming down the road. It came to a short distance from the shack, when the driver, evidently seeing the sheriff’s car, tried to turn his own car around, hut being unable to do so abandoned it. The car contained two cases of caps and a sack of empties, indicating that it was being used in connection with the manufacture and sale of the liquor which the officers found. Upon examination, this car was found to be the same one that appellant had been seen driving, and when the driver ran away from the car, at least three persons who saw him testified that, while they could not positively identify the person as being appellant, they saw someone who looked like appellant, “and should judge that it was him. ’ ’ The weig'ht of this evidence was for the jury. It appearing, therefore, that there is no reversible error-in the case, the judgment of the trial court is affirmed. Tolman, C. J., Mackintosh, Parker, and Mitchell, JJ., concur.