State v. Anderson , 148 Wash. 310 ( 1928 )

The defendants, together with one Axel Johnson, were charged by information with the crime of being jointists, the charging part of the information being as follows:

"They, said Otto Anderson, Mary Anderson, and Axel Johnson, and each of them, in the County of King, State of Washington, on the 7th day of May, A.D. 1927, did then and there wilfully, unlawfully and feloniously open up, conduct and maintain a place at number 2018 9th avenue, in rooms numbered 6 and 7, in the city of Seattle, said county and state, for the unlawful sale of intoxicating liquor."

The errors complained of will be grouped under two heads: First, the admission of certain exhibits; and second, the failure to give certain requested instructions.

[1] The facts in the case seem to indicate that the appellants were living in a suite of rooms at No. 2018 9th avenue. This suite consisted of four rooms, the living rooms being numbered 6 and 7. A large number of witnesses testified to having purchased liquor from appellants in rooms numbered 6 and 7. Other liquor was seized by the arresting officers in rooms numbered 6 and 7, and certain of the exhibits were found in the adjoining and connecting rooms of the suite. The door into these adjoining rooms was open and those who purchased liquor testified that sometimes the liquor would be in either room 6 or room 7, and sometimes the party selling it would go into one of the adjoining rooms and bring the liquor out.

At the time the search was made and certain of the liquor seized, appellant Otto Kindlund was not present. As the officers were leaving the rooms, they met Otto Kindlund at the entrance to the premises and there arrested him, searched him and took certain of the exhibits from his person. Certain of the marked money which had been used in purchasing the liquor was found in the rooms in question, and part of it was found in the adjoining room.

The testimony conclusively shows that all four of these rooms were used by the appellants as their residence. The testimony also seems to indicate that sales generally took place in rooms numbered 6 and 7.

No objection seems to have been made to the search of these two adjoining rooms, and no motion was made to suppress the evidence either before or during the trial. There seems to be no reason why, when persons are charged with conducting a joint in two of the rooms of a suite which they are admittedly occupying, there cannot be offered in evidence liquor obtained in adjoining or connecting rooms which are a part of the same suite or premises admittedly occupied by the defendants. State v.Andrich, 135 Wn. 609, 238 P. 638; State v. Voelker,137 Wn. 156, 242 P. 6.

[2] Certain of the exhibits were taken from Otto Kindlund at the time of his arrest. The evidence conclusively shows that the arresting officers had reasonable cause to believe, and did believe, that the appellant Otto Kindlund was committing a felony, and his own admissions seem to confirm this fact. He having been legally placed under arrest, the officers had a right to search him, and whatever was found on his person at the time of the search, tending to throw light on the offense with which he was charged, was admissible in evidence. State v. Evans,145 Wn. 4, 258 P. 845; State v. Gramps, 146 Wn. 509,263 P. 961; State v. Deitz, 136 Wn. 228, 239 P. 386.

[3] No good purpose can be served by setting up appellants' proposed instructions. One of these instructions appears to have been given as requested. Instruction No. 1 is in part clearly objectionable, but together with the third requested instruction was, in so far as proper, covered in other instructions. It is not error to refuse to give instructions, the substance of which has been covered by other instructions. State v.Johnston, 145 Wn. 638, 261 P. 388.

[4] Certain objections are made to the form of the information. But the form of this information has been approved in the following cases: State v. Burgess, 111 Wn. 537,191 P. 635; State v. Misetrich, 124 Wn. 470, 215 P. 13;State v. Goforth, 126 Wn. 56, 216 P. 882; State v. Baird,128 Wn. 166, 222 P. 218.

Complaint is also made that the court instructed the jury as to proof of possession of intoxicating liquor being prima facie evidence that such liquor was held and kept for unlawful sale or disposition. But in this case, the court also gave the qualifying instruction which this court held must accompany such instruction. State v. Lesh, 132 Wn. 316, 232 P. 305; Statev. Kallas, 133 Wn. 23, 233 P. 315.

We find no error in the record.

Affirmed.

FULLERTON, C.J., PARKER, MITCHELL, and TOLMAN, JJ., concur.