50 Wn.2d 809, THE STATE OF WASHINGTON, Respondent, v. EDWARD CLIFFORD HENKER, Appellant
[No. 33815. Department One. Supreme Court August 29, 1957.]
THE STATE OF WASHINGTON, Respondent, v. EDWARD
CLIFFORD HENKER, Appellant.1
[1] SEARCHES AND SEIZURES - SEARCH WARRANTS - EVIDENCE FOR ISSUANCE - PROBABLE CAUSE. The facts necessary to show probable cause for the issuance of a search warrant need not be supported by evidence admissible in the case in chief.
[2] SAME. To constitute probable cause for the issuance of a search warrant, there must be reasonable grounds for suspicion supported by circumstances sufficiently strong in themselves to warrant a man of ordinary caution in believing the accused to be guilty of the indicated crime.
[3] SAME. A search warrant was issued upon probable cause that the accused was guilty of the crime of unlawfully possessing and having under his control a narcotic drug, where it appears that marijuana leases from a plant growing in a garden in the accused's back yard were turned over to the police and analyzed, and thereupon a police officer went on the property of the accused's neighbor and observed some plants having the characteristics of marijuana growing in the accused's garden.
[4] POISONS - NARCOTICS - PROSECUTION - POSSESSION OF NARCOTICS -ELEMENTS OF OFFENSE - INTENT. RCW 69.33.020, making it unlawful for any person to possess or have under his control any narcotic drug except as authorized, omits the words "with intent to sell," contained in the prior narcotics act (Laws of 1923, chapter 47, 3), thereby evidencing a desire to make mere possession or control a crime.
[5] APPEAL AND ERROR - REVIEW - INSTRUCTIONS - AS LAW OF CASE. Where no exception is taken to an instruction, it becomes the law of the case.
[6] POISONS - NARCOTICS - PROSECUTION - POSSESSION OF NARCOTICS -EVIDENCE - SUFFICIENCY. In a prosecution for unlawfully possessing and having under control a narcotic drug, held that the evidence was sufficient to sustain the verdict of guilty.
Appeal from a judgment of the superior court for Spokane county, No. 15270, Edgerton, J., entered April 6, 1956, upon a trial and conviction of unlawful possession of a narcotic drug. Affirmed.
Del Cary Smith and Ellsworth I. Connelly for appellant.
John J. Lally and Joseph J. Rekofke, for respondent.
1 Reported in 314 P. (2d) 645.
[2] See 39 A. L. R. 835; 47 Am. Jur. 516.
810 STATE v. HENKER. [50 Wn. (2d)
FINLEY, J. -
Defendant Henker was charged under RCW 69.33.020 with unlawfully possessing and having under his control a narcotic drug, to wit: canabis, commonly known as marijuana. After conviction by a jury, imposition of sentence, and entry of judgment, Henker perfected an appeal to this court.
In the trial court, defendant Henker moved, at the appropriate time, to suppress certain significantly incriminating evidence, on the ground that it had been obtained through illegal search and seizure in that the search warrant had been issued without probable cause. The trial court denied the motion to suppress the evidence, and Henker assigns error to that action.
The record shows that Mrs. Campbell, a woman acquaintance of the appellant, obtained three marijuana leaves from a plant growing in a gladioli bed in the back yard of appellant's home. She turned the marijuana leaves over to the police, who had them analyzed by a chemist.
Upon receiving the above information, which indicated a possible criminal violation by the appellant Spokane Police Officer Harry Cockburn (assigned to the narcotics detail) undertook an investigation. He went on the property of appellant's adjoining neighbor and observed some plants - having the characteristics of marijuana growing in appellant's gladioli bed.
Officer Cockburn obtained a search warrant on the basis of the indicated information. In the subsequent search, the several marijuana plants which he had seen growing on appellant's property were confiscated. These plants were introduced into evidence at the trial.
[1] Appellant contends that the facts necessary to show probable cause must be supported by evidence admissible in the case in chief, and cites Ladd v. Miles (1932), 171 Wash. 44, 17 P. (2d) 875, which in turn cites Grau v. United States (1932), 287 U. S. 124, 77 L. Ed. 212, 53 S. Ct. 38. This contention of appellant is entirely rebutted by the language of the court in Brinegar v. United States (1949), 338 U. S. 160, 93 L. Ed. 1879, 69 S. Ct. 1302; see. particularly, footnote 12, p. 174, reading
Aug. 1957] STATE v. HENKER. 811
"The inappropriateness of applying the rules of evidence as a criterion to determine probable cause is apparent in the case of an application for a warrant before a magistrate, the context in which the issue of probable cause most frequently arises. The ordinary rules of evidence are generally not applied in ex parte proceedings, "partly because there is no opponent to invoke them, partly because the judges determination is usually discretionary, partly because it is seldom final, but mainly because the system of Evidence rules was devised for the special control of trials by jury.' 1 Wigmore, Evidence (3d ed., 1940) 19."
In any event, the Ladd case, factually. is clearly distinguishable from the instant case. In the latter case, as previously indicated, Officer Cockburn made an independent, personal investigation.
[2] Actually, probable cause is a simple yet meaningful legal concept. For the protection of the public, it imposes reasonable restraint upon the issuance of search warrants to law enforcement officers. The concept is a practicable, workable one. It requires that there be reasonable grounds for suspicion supported by circumstances sufficiently strong in themselves to warrant a man of ordinary caution in believing the accused to be guilty of the indicated crime. Cf. State v. Hughlett, 124 Wash. 366. 214 Pac. 841.
[3] We believe that the facts available to Officer Cockburn were sufficient to cause a man of reasonable caution to believe that an offense was being committed by the appellant; consequently, we are convinced that the search warrant was issued upon probable cause.
In another assignment of error, appellant contends that the state was required to prove beyond a reasonable doubt, not only that Henker had knowledge of the existence of marijuana on his premises, but that the possession and control thereof was willful and intentional.
RCW 69.33.020 [cf. Laws of 1951, 2nd Ex. Ses., chapter 22, 2], under which appellant was charged, reads as follows:
"It shall be unlawful for any person to manufacture, possess, have under his control, sell, prescribe, administer, dispense, or compound any narcotic drug, except as authorized in this chapter."
812 STATE v. HENKER. [50 Wn. (2d)
Whether intent or guilty knowledge is to be made an essential element of this crime is basically a matter to be deter mined by the legislature.
The prior narcotics act, Laws of 1923, chapter 47, 3, p. 134, provided:
"It shall be unlawful for any person to sell, furnish, or dispose of, or have in his possession with intent to sell, furnish, or dispose of any narcotic drug or drugs, except upon the written and signed prescription of a physician regularly licensed to practice medicine and surgery . . ." (Italics ours.)
[4] Intent to sell was a necessary element of the crime of possession under the above-quoted statute. State v. Lee, (1923), 127 Wash. 377, 220 Pac. 753. Had the legislature intended to retain guilty knowledge or intent as an element of the crime of possession, it would have spelled it out as it did in the previous statute. The omission of the words with intent evidences a desire to make mere possession or control a crime. See State v. Lindberg (1923), 125 Wash. 51, 215 Pac. 41, and cases cited therein. Accord: People v. Winston (1956), 46 Cal. (2d) 151, 293 P. (2d) 40; Broic v. State (1955), 79 So. (2d) 287 (Florida).
[5] In the case at bar, the trial court instructed the jury that the state must prove beyond a reasonable doubt that Henker knew he possessed marijuana and knew he had it under his control. No exception was taken by the state to this instruction, and it became the law of the case. State v. Hall (1952), 41 Wn. (2d) 446, 249 P. (2d) 769. Appellant thus received the benefit of the doubt as to whether the statute made knowledge an element of the crime with which he was charged.
[6] There is evidence in the record indicating that an acquaintance of Henker twice told him that he had marijuana growing in his gladioli bed. In addition, there is evidence that he asked Mrs. Campbell about the marijuana on one occasion.
We think that the facts in the record are sufficient to sustain the jury's verdict as to appellant's guilt in regard to the crime charged. We find no merit in appellant's other
Aug. 1957] STATE v. HENKER. 813
assignments of error. The judgment of the trial court is affirmed.
HILL, C. J., MALLERY, ROSELLINI, and OTT, JJ., concur.