44 Wn.2d 177, THE STATE OF WASHINGTON, Respondent, v. MORRIS WOOTEN, Appellant

[No. 32725. Department One.      Supreme Court      January 29, 1954.]

THE STATE OF WASHINGTON, Respondent, v. MORRIS WOOTEN,
                               Appellant.1

[1] POISONS - NARCOTICS - PROSECUTION FOR UNLAWFUL SALE - INSTRUCTIONS - ACCOMPLICES. In a prosecution for the unlawful sale of narcotics, in which it was the theory of the state that the defendant had arranged for the delivery of the narcotics by another person, an instruction that one who procures another's services to sell a narcotic drug on his behalf is guilty of selling such drug even though the acts were performed by the other person, while a correct abstract statement of the law, was erroneous in that the jury may have inferred from it, rather than found from the evidence, that the defendant had procured the services of the other person; and the instruction should have contained the admonition that, in order to convict, the jury must believe that the evidence had proved beyond a reasonable doubt that the defendant had procured the services of another person to sell a narcotic drug on his behalf.

[2] SAME. In such a prosecution, an instruction that one who aids, abets, or assists another in the commission of a crime is an accomplice, whose testimony should be scrutinized with great care, should have included the factual qualification that the jury must believe that the evidence had proved beyond a reasonable doubt that the person who delivered the narcotics was an accomplice, to which should be added the element of intent.

[3] SAME - EVIDENCE - INTENT - ACCOMPLICES. Criminal intent will be presumed from the act of selling narcotics without a prescription; however, one who, without knowledge that a crime is being committed, unconsciously assists in forwarding the criminal scheme is not an accomplice but merely an innocent agent.

[4] SAME - TIME OF TRIAL - DISCRETION OF COURT. In a criminal prosecution, held that it was not an abuse of discretion for the trial court to deny the defendant's motion to dismiss the information under RCW 10.46.010 because he was not brought to trial within sixty days of the filing thereof.

[5] SEARCHES AND SEIZURES - ILLEGAL SEARCH AND SEIZURE - PERSONS ENTITLED TO RAISE QUESTION. A defendant may not be heard to complain of an alleged illegal search and seizure of the property of third persons.

Appeal from a judgment of the superior court for King county, No. 26746, Agnew, J., entered October 28, 1953, upon


1 Reported in 266 P. (2d) 342.

[1] See 39 A. L. R. 251; 17 Am. Jur. 854.

 178    STATE v. WOOTEN. [44 Wn. (2d)

a trial and conviction of the unlawful sale of narcotics. Reversed.

Charles M. Stokes, for appellant.

Charles O. Carroll and Murray B. Guterson, for respondent.

MALLERY, J. -

The defendant appeals from a judgment and sentence for the unlawful sale of narcotics.

There was evidence that one Barbara Martin had called a pool hall, asked for "Lennie," and recognized appellant's voice when he answered the telephone. She made an appointment to meet him at 7:00 p. m. at the "same place" without making any mention of her purpose.

At the appointed time, one White drove appellant's car, which Miss Martin recognized, to Second and Cherry streets in Seattle. She got in the car, handed him some money, and received a package. Shortly thereafter two Federal agents and a city detective arrested and searched them, and seized the package, which contained heroin hydrochloride.

Appellant contended that he was not known as "Lennie"; that he was fishing at all times in question; that he had not given any package to White for delivery to Miss Martin; and that if White had delivered such a package he had done so on his own account and without the knowledge or connivance of appellant.

White took the position that he was an innocent tool and did not know what was in the package. The theory of the state was, of course, that appellant had arranged for the delivery of the narcotic by White. It was therefore necesary for the jury to determine whether White was acting on his own account or as an accomplice of appellant.

[1] On this question, it was necessary for the trial court to instruct the jury that if they believed the evidence had proved beyond a reasonable doubt that appellant had procured the services of another person to sell a narcotic drug on his behalf, they should find him guilty of the crime charged; but if the sale was made by the other person acting

 Jan. 1954]              STATE v. WOOTEN.           179

in his own behalf and not as the agent of appellant, they must acquit him. The court gave instruction No. 2, which reads:

"One who procures another's services to sell a narcotic drug on his behalf is guilty of selling such drug, even though the acts were performed by the other person.

Appellant contends that the jury may have inferred from the instruction, rather than found from the evidence, that he had procured White's services. The instruction is a correct abstract statement of the law. We agree, however, that it would sustain the inference for which appellant contends. It should therefore have contained the admonition pertaining to the evidence in the case as set out above.

[2, 3] Appellant complains of instruction No. 6, which reads:

"One who aids, abets or assists another in the commission of a crime is an accomplice. Although the law allows a conviction upon the uncorroborated testimony of an accomplice, the law also looks upon such testimony with suspicion and regards it as coming from a polluted source. It would be your duty to scrutinize the testimony of an accomplice with great care.

Appellant contends that a juror could infer from this instruction that White was an accomplice in the crime with which appellant had been charged, thus implying that the crime charged had been committed. We repeat the need for a factual qualification as in the preceding instruction to which should be added the element of intent. It is true that criminal intent will be presumed from the act of selling narcotics without a prescription. State v. Linder, 156 Wash. 452, 287 Pac. 16. However, one who, without knowledge that a crime is being committed, unconsciously assists in forwarding the criminal scheme is not an accomplice, but merely an innocent agent. Baker v. Commonwealth, 212 Ky. 50, 278 S. W. 163; Saied v. State, 65 Okla. Crim. 124, 83 P. (2d) 605; Cozine v. State, 87 Tex. Crim. App. 92, 220 S. W. 102. The word "knowingly" should therefore be added to the instruction.

[4] Appellant contends that the court erred in denying his motion to dismiss the information under RCW 10.46.010

 180    STATE v. WOOTEN. [44 Wn. (2d)

[cf. Rem. Rev. Stat., 23 12] because he was not brought to trial within sixty days of the filing thereof. We have examined the record with reference to the several times this motion was presented and cannot find that the trial court abused its discretion in denying it. While awaiting trial, appellant was free on bail, and the record discloses that good cause was shown to the court for denying the motion.

[5] Appellant further assigns error to the denial of his motion to suppress the package as evidence on the ground that it was an unlawful search and seizure. Appellant was neither searched nor present at the search. He may not be heard to complain of an alleged illegal search and seizure of the property of third persons. State v. Funk, 170 Wash. 560, 17 P. (2d) 11, and cases cited. See, also, annotation in 150 A. L. R. 566, 577.

The judgment is reversed, and the cause is remanded for a new trial.

GRADY, C. J., HAMLEY, FINLEY, and OLSON, JJ., concur.