Opinion
No. 25105. Department One.
June 12, 1934.
CRIMINAL LAW (6, 12) — BURGLARY (19) — EVIDENCE — SUFFICIENCY — INTENT — ATTEMPTS — OVERT ACTS — PREPARATION. In a prosecution for attempt to commit a burglary under Rem. Rev. Stat., §§ 2264, 2579, defining attempts and second degree burglary, there is sufficient evidence of criminal intent and overt act, where the defendant was caught while fleeing from officers, after breaking the lock off the door of a store at night.
BURGLARY (16) — EVIDENCE — ADMISSIBILITY — IMPLEMENTS OF BURGLARY. In a prosecution for attempt to commit a burglary, a crowbar and hammer taken from accused's car are admissible in evidence, where they were similar to the ones actually used by him in breaking into a store at night, after driving his car to the neighborhood and obtaining therefrom the crowbar used in the attempt.
CRIMINAL LAW (109) — EVIDENCE — ADMISSIBILITY — FORMER CONVICTION AS AFFECTING CREDIBILITY. Where accused becomes a witness in his own behalf he submits himself to cross-examination with respect to former convictions and punishments for crimes, to affect the weight of his testimony.
Appeal from a judgment of the superior court for Pierce county, Hodge, J., entered December 4, 1933, upon a trial and conviction of attempt to commit burglary in the second degree. Affirmed.
P.L. Pendleton, for appellant.
Bertil E. Johnson and Byron D. Scott, for respondent.
Joe Chacky was prosecuted and convicted of an attempt to commit the crime of burglary in the second degree. The information conforms to Rem. Rev. Stat., § 2264, defining an attempt to commit a crime, and Rem. Rev. Stat., § 2579, defining the crime of second degree burglary. The defendant has appealed.
[1] The first assignment is that the court erred in denying appellant's motion for a directed verdict. At the close of the state's case, the evidence strongly tended to show, as follows: The building attempted to be burglarized was the Piggly Wiggly store in Tacoma, in which goods were kept for sale, and that the attempt to break into and enter through the front door occurred about midnight; the door was fastened with a stock lock, and also with a padlock on the outside of the door; a merchant police and a companion saw two men drive up and stop their automobile near the store, get out and make some examination of the front of the store, including the door; one of them, identified as the appellant, went to his automobile, got a crowbar and pried the padlock off the door of the building; just at that time, the police and his companion moved toward the building, whereupon the appellant and his companion fled in different directions; the appellant was overtaken and arrested by the police, who picked up the broken lock and the crowbar; the officer found, on the floor of appellant's automobile, another crowbar similar to the one used to break the lock on the door, and also a claw hammer.
This evidence was enough to take the case to the jury on the questions of criminal intent and overt act — the two elements necessary in such a case under the rule announced in State v. Awde, 154 Wn. 463, 282 P. 908.
The identification of the appellant at the trial, being believed, was entirely sufficient.
[2] The next assignment is on appellant's objection to admitting in evidence the crowbar and hammer taken from appellant's car. They were implements of the same general character as the one actually used to destroy the padlock, and were found under circumstances that justified admitting them in evidence as bearing upon the question of appellant's intent in committing the overt act of breaking the padlock with the other crowbar.
Denial of appellant's motion in arrest of judgment is assigned as error. The assignment is submitted by appellant on his argument upon his motion for a directed verdict. This one, in arrest of judgment, was properly denied.
[3] Lastly, it is claimed error was committed in the latitude allowed the state in the cross-examination of the appellant with respect to former convictions and punishments for crimes. He became a witness in his own behalf, and, as we read the cross-examination, it was well within the rule fixed by Rem. Rev. Stat., § 2290, and our decisions upon that subject, as affecting the weight of his testimony. State v. Blaine, 64 Wn. 122, 116 P. 660; State v. Heimbigner, 137 Wn. 409, 242 P. 654; State v. Evans, 145 Wn. 4, 258 P. 845; State v. Steele, 150 Wn. 466, 273 P. 742; State v. Brames, 154 Wn. 304, 282 P. 48.
The jury was instructed correctly in regard to the limitations and purposes of such cross-examination, to which instruction no exception was taken.
Judgment affirmed.
BLAKE, MAIN, MILLARD, and STEINERT, JJ., concur.