31 Wn.2d 788, THE CITY OF BREMERTON, Respondent and Cross-appellant, v. CLYDE O. SMITH et al., Appellants
[No. 30474. En Banc. Supreme Court November 5, 1948.]
THE CITY OF BREMERTON, Respondent and Cross-appellant,
v. CLYDE O. SMITH et al., Appellants.«1»

Though a possessor of a thing of value be unable to make good in court a legal right to possess it, still, one with no claim of right may not mutilate it or, by stealth, trick, force, or threats, take it from him. To hold otherwise would

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frustrate that basic purpose of the law, which is to bring peace and security to society. It should not be decreed that such a possessor be relegated and invited to the use of force and violence to maintain his possession because of immunity granted to outlawry. No variety of larceny can be made consistent with the interests of an orderly society. See State v. Schoonover, 122 Wash. 562, 211 Pac. 756, and State v. Donovan, 108 Wash. 276, 183 Pac. 127.

The trial developed the facts that the Moose Lodge, the Eagles Lodge, and the Bremerton City Club maintained slot machines in their clubrooms. The appellants made the rounds of these clubs. Upon entering the clubrooms, the procedure followed was to buy scrip books for drinks and secure silver coins ostensibly with the purpose of playing the slot machines. Appellant Smith acted as a lookout, while the others played. Appellant Clyde Smith told Officer Carey that it took about five seconds to drill holes in the slot machines, and that they "beat" the machines in the clubrooms mentioned. The jack pots on some of the slot machines ran as high as fifty dollars. The exact method of manipulating the slot machines after the holes were bored wad not explained in the record. Smith explained to the officer that he and his wife took one half of the winnings and Herschil and Miltred Blackwell took the other half, after all expenses were deducted.

After the appellants left the Moose clubroom, the attendant noticed metal shavings in the slot machine trays and thereupon discovered that small holes had been bored in the machines just above the jack pot receptacles. Information was then given to the police, which led up to the arrest here in question.

[4, 5] The most difficult question in the case hinges upon the legality of the arrest of the defendants. They were arrested without a warrant, and articles seized from them were introduced in evidence as exhibits in the case. If the arrest was illegal, then the articles revealed in the search incident to it should have been suppressed. On the other hand, if the arrest was legal, then the exhibits were properly admitted. The offense was not committed in the

792 BREMERTON v. SMITH. [31 Wn. (2d)

presence of the arresting officer, and hence, to be valid without a warrant, it must have been for a felony and upon sufficient information of a competent nature given to the officer to fall under the rule that he must have had probable cause to believe that a felony had been committed.

The question presented to us is not one of law, which is reasonably clear, but one of fact, that is: Do the facts in this case bring it under the rule permitting an arrest for a felony not committed in the presence of an arresting officer? The information possessed by the arresting officer may be summarized as follows: He recognized Mrs. Blackwell as one of the persons described in a circular received from the Aberdeen police department, in which she and the other defendants were described as expert pinball machine defrauders; she had been pointed out to him as one of the individuals who had taken "a large sum of money" from the slot machines located in the clubrooms of the Moose Lodge at Bremerton; he had found on the front seat of the car in which she had been riding, a canvas bag containing a large quantity of silver coins (subsequently ascertained to amount to more than two hundred dollars), a hand drill, and two shims, or "feelers," with hooks on the end. These articles were in plain view of anyone looking into the car. The weight of the bag containing more than two hundred dollars in silver coins apprised the arresting officer that its contents amounted to more than twenty-five dollars. (There was $266.55 in the bag when it was introduced in evidence, but the testimony showed that forty or fifty dollars of that amount had been taken from Mrs. Blackwell#s purse and placed in the bag after the arrest, so that the money in the bag, when taken from the front seat of the car, must have amounted to more than two hundred dollars.)

The examination of Mrs. Blackwell's purse followed the arrest, and, in addition to the forty or fifty dollars in silver above referred to, the following articles were found therein: colored crayons, matches, a pen knife, and drills. These articles were significant because of the testimony that it was customary, after holes had been drilled in a slot

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machine, to insert matches in the holes and to color the ends of the matches with crayon of the same color as the machine.

[6] We conclude that these facts bring the defendants within the rule, and that the arrest was lawful, that the search was incident thereto, and that therefore the exhibits were admissible.

The fact that the defendants were ultimately charged with and convicted of pilfering instead of grand larceny is, of course, entirely beside the point; the material issue is whether the arresting officer had probable cause to believe, at the time the arrest was made, that the defendants were guilty of a felony.

The exercise of discretion on the part of the city attorney in filing a complaint in the municipal police court, which has no jurisdiction over felonies, is without significance, since it does not relate back and convert the arrest for a felony into one for a misdemeanor.

[7] Appellants urge that the trial court erred in refusing them the privilege of demonstrating to the jury the manner in which slot machines could be made to pay without the use of any method other than the manipulation of the lever by which the machines are operated.

"The admissibility of experiments, illustrations, and other demonstrative evidence before a jury, throwing light upon the manner in which a crime was committed, rests in the discretion of the trial court." State v. Richardson, 197 Wash. 157, 84 P. (2d) 699.

We are of the opinion that the trial court properly exercised its discretion in refusing a demonstration. The demonstration, if made, could not have tended to in any manner disprove the evidence introduced by the city.

[8] Complaint is made about instructions given. Those instructions are not included in appellants' brief and cannot be considered.

Appellants also predicate error upon the refusal of the trial court to give two requested instructions. We have examined those instructions and find that the court was entirely correct in refusing to give them, the reason being

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that they did not state the law as we have determined it to be.

Passing now to the city's cross-appeal, we shall assume without deciding that the city has a right to appeal. The court granted a motion in arrest of judgment by authority of Rule of Practice 12(4), 18 Wn. (2d) 40-a. It will be remembered that counts II, III, V, and VI of the complaint charge offenses committed in the Eagles Lodge and in the Bremerton City Club, and that the court dismissed the charges contained in these counts. A study of the evidence convinces us that the ruling of the trial court was correct. The evidence submitted to the jury was insufficient to justify the verdict of guilty in so far as the lastmentioned charges were concerned.

The judgment is affirmed.

BEALS, STEINERT, JEFFERS, and HILL, JJ., concur.

SIMPSON, J. (dissenting) - This case was first assigned to me. I wrote to reverse. A dissent was written and received a majority. The case was then assigned to the writer of the present majority opinion. I shall again state the facts gleaned from the records in this case as contained in my opinion:

The Moose Lodge, the Eagles Lodge, and the Bremerton City Club maintained devices known as slot machines. These machines, sixty in number, are located in the organizations' respective clubrooms. The machines are so constructed that it is impossible to win from them except by chance.

Appellants visited the Eagles, Moose, and City Club rooms in which the slot machines were located. Upon entering the clubrooms, the usual procedure was to buy scrip books and drinks, and silver with which to play the machines. Appellant Smith acted as a lookout while the other appellants played. At times, they won jack pots. The jack pot on some of the machines paid as high as fifty dollars. After appellants left the Moose clubroom, the attendant noticed metal shavings in the machine trays. He also noticed that small

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holes had been bored in the machines just above the jack pot receptacles.

Appellant Clyde Smith explained to Police Officer Vern Carey that he and his wife took half the earnings, and Herschil and Miltred Blackwell received the other half of the Winnings, after all expenses were paid. Smith told the officer it took about five seconds to drill the holes in the slot machines, and that the appellants beat the machines in the Moose Lodge, Eagles Lodge, and in the City Club. The exact method used by appellants in obtaining money from the slot machines by means of the drilled holes, was not explained.

The first argument advanced by appellants is that the city attorney could not on appeal to the superior court amend his complaint by adding new counts. I am unable to find any error in the court's allowance of the motion to amend the complaint. Appeals from municipal or justice courts are tried de novo in the superior court. Rule of Practice 12 (2), 18 Wn. (2d) 40-a, allows, under certain conditions, the amendment of an information. There is no good reason to deny the right to amend the complaint such as was presented to the court in this case. True, the rule mentions only informations. The evident purpose of the rule, however, was to allow amendments to all charges in a criminal case.

The next contention made by appellants relates to the denial of their motion to suppress certain evidence. The motion to suppress was timely made prior to the trial in the city court, and prior to the trial in the superior court. The motion was based on the ground that appellants' arrest was without warrant, and that certain articles seized by the city police officers were taken from appellants' automobile without their consent, and without a search warrant. The articles seized, and afterwards admitted in evidence, Were: a small drill, two wires about eight inches in length; a canvas bag containing money, and Mrs. Blackwell's purse (taken from her person) containing some wooden matches, colored crayons, a penknife, and drills. At the beginning of the trial

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in the superior court, the motion to suppress evidence was denied.

The facts leading up to and surrounding the arrest, search, and seizure, are: About 6:30 p. m., May 23, 1947, appellants were seated in their automobile on Fourth street in the city of Bremerton, at which time Sergeant Matthews of the Bremerton police department approached them and requested that they accompany him to the police station. Appellants then went with the officer to the police station, where they remained. Immediately afterward, the sergeant returned to the automobile and took from the front seat thereof the articles mentioned above, except the purse belonging to Mrs. Blackwell and its contents.

The city's opposition to the motion to suppress the evidence is contained in two affidavits of members of the Bremerton police department. One affidavit, signed by Officer Robert Bramlett, stated that, May 23, 1947, at about ten a. m., he received by letter from the police department of Aberdeen, four photographs identifying Otie Elizabeth Smith, Clyde Oscar Smith, Herschil Lowranzy Blackwell, and Miltred Ruth Blackwell, and that all of the individuals were reported to be expert pinball machine operators. The affidavit showed that the officer then placed on the bulletin board the photographs, with the following information: "EXPERT PINBALL MACHINE DEFRAUDERS - Reported by Aberdeen Police Department 5-23-47 - Descriptions on reverse side of pictures."

The affidavit of Richard A. Matthews of the Bremerton police force, showed that: About 6:40 p. m., May 23, 1947, Fred D. Taylor entered the city hall and complained that four individuals, whose names were unknown, entered the clubrooms of the Moose Lodge, took therefrom, "A LARGE AMOUNT OF MONEY, THE EXACT AMOUNT OF WHICH WAS UNKNOWN, FROM SLOT MACHINES." Later, Mr. Taylor notified the sergeant that the four individuals were then entering an automobile on a Bremerton street near the police station. During the day, Officer Matthews had noticed the photographs posted on the bulletin board by Officer

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Bramlett. Officer Matthews required appellants to enter the police headquarters. Appellants complied with the request, and Miltred Blackwell then asked the officer to get for her from the car a large amount of money in a canvas bag on the front seat. He did as requested and returned with the money bag, a hand drill, and two wire shims or feelers with hooks on the end. The officer did not have a search warrant to search appellants' car, their persons, nor appellant Miltred Blackwell's purse.

An affidavit signed by Mrs. Blackwell stated that she had never requested Officer Matthews to secure anything from the automobile; that, after appellants were taken into the police station, Officer Matthews left and "came back a few minutes later carrying certain articles of personal property which had been on the front seat of the automobile"; that, shortly thereafter, the officers again departed from the police station and returned with other articles of personal property, all of which had been locked in either the glove compartment or the back of the car. Her affidavit also shows that the officers took from her purse, which she had in her possession, a large sum of money. There is no showing by appellants that any of the articles introduced in evidence, except the purse taken from Mrs. Blackwell, and its contents, were in the glove compartment or in the back portion of the car. I conclude, therefore, that the articles introduced in evidence, except the contents of Mrs. Blackwell's purse, were on the front seat of the automobile and in plain view of anyone looking into the car. It is my conclusion that all of the seized articles found on the seat of the automobile were admissible in evidence.

The constitutional prohibition against search and seizure does not apply in cases in which articles seized were secured as a result of a search, but were in plain view of the officers. State v. Miller, 121 Wash. 153, 209 Pac. 9; State v. Duncan, 124 Wash. 372, 214 Pac. 838; State v. Dutcher, 141 Wash. 627, 251 Pac. 879; State v. Parent, 156 Wash. 604, 287 Pac. 662; and, 47 Am. Jur. 516, Searches and Seizures, § 20.

A different situation is presented by the introduction of the articles obtained by searching the purse in the

798 BREMERTON v. SMITH. [31 Wn. (2d)

possession of Mrs. Blackwell. The motion to suppress the evidence, and the evidence produced at the trial on behalf of the state over objection, showed that Officer Matthews took the purse from Mrs. Blackwell while she was in the police station, searched it, and took therefrom the colored crayons, wooden matches, the penknife, and drills that were introduced in evidence. The majority attempts to justify the introduction of this evidence on the ground that it was obtained as an incident to the arrest. The only basis upon which the majority could justify the search of Mrs. Blackwell's purse as an incident to the arrest, is that the officer had a good and sufficient reason to believe that Mrs. Blackwell had committed a felony.

The majority opinion states: "The question presented to us is not one of law, which is reasonably clear, but one of fact." If this opinion is followed, hereafter this court will have two sets of reports - one dealing with questions of fact, the other with questions of law.

The majority opinion does not cite any sustaining authority for its holding - this for the simple reason that there is no sustaining authority either in this, or any other court of the Union. On the other hand, the courts, including this one, have time and again held contrary to the holding of the majority opinion.

The majority has lost sight of its recent utterances in the case of State v. Miles, 29 Wn. (2d) 921, 190 P. (2d) 740, in which it was held:

"The rights of individuals as guaranteed by our constitution, are not to be lightly considered. The framers of our constitutions, Federal and state, realized that laws affecting the liberty of men must be safeguarded, since the wisdom of the ages has taught that unrestrained official conduct in respect to depriving men of their liberties would soon amount to a total loss of those liberties. Where procedure relating to arrest and search is provided, it must be strictly followed.

"This conclusion is fortified by the following excerpts from Gouled v. United States, 255 U. S. 298, 65 L. Ed. 647, 41 S. Ct. 261:

"`It would not be possible to add to the emphasis with

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which the framers of our Constitution and this court (in Boyd v. United States, 116 U. S. 616, in Weeks v. United States, 232 U. S. 383, and in Silverthorne Lumber Co. v. United States, 251 U. S. 385) have declared the importance to political liberty and to the welfare of our country of the due observance of the rights guaranteed under the Constitution by these two Amendments. The effect of the decisions cited is: that such rights are declared to be indispensable to the "full enjoyment of personal security, personal liberty and private property"; that they are to be regarded as of the very essence of constitutional liberty; and that the guaranty of them is as important and as imperative as are the guaranties of the other fundamental rights of the individual citizen, - the right, to trial by jury, to the writ of habeas corpus and to due process of law. It has been repeatedly decided that these Amendments should receive a liberal construction, so as to prevent stealthy encroachment upon or "gradual depreciation" of the rights secured by them, by imperceptible practice of courts or by wellintentioned but mistakenly over-zealous executive officers.

"`. . . It is plain that the trial court acted upon the rule, widely adopted, that courts in criminal trials will not pause to determine how the possession of evidence tendered has been obtained. While this is a rule of great practical importance, yet, after all, it is only a rule of procedure, and therefore it is not to be applied as a hard and fast formula to every case, regardless of its special circumstances. We think rather that it is a rule to be used to secure the ends of justice under the circumstances presented by each case, and where, in the progress of a trial, it becomes probable that there has been an unconstitutional seizure of papers, it is the duty of the trial court to entertain an objection to their admission or a motion for their exclusion and to consider and decide the question as then presented, even where a motion to return the papers may have been denied before trial. A rule of practice must not be allowed for any technical reason to prevail over a constitutional right.'

"It is beneath the dignity of the state of Washington, and against public policy, for the state to use for its own profit any evidence that has been unlawfully obtained. State v. Buckley, 145 Wash. 87, 258 Pac. 1030, and State v. Knudsen, 154 Wash. 87, 280 Pac. 922."

The danger to the liberties of the people of this state, if the majority rule prevails, is real and not imaginary. It

800 BREMERTON v. SMITH. [31 Wn. (2d)

has been a fundamental principle of Anglo-American law from the time of Magna Charta to the present day that a citizen may not be deprived of his liberty except by due process of law.

We should follow the direction contained in our state constitution, Art. I, § 32:

"A frequent recurrence to fundamental principles is essential to the security of individual rights, and the perpetuity of free government."

A fundamental principle of American government, without which there is no liberty, is contained in the following quotation's: