Mary Houghton1

F, #107461, b. circa 1805

Family:

Biography

Corresponded with authorN
A Contributor to Houghton Surname ProjectN
Birthcirca 1805Canada, age 65, Canada, in 1870 census1
DuplicateWinona, MN, USA, son Legrand; but different bds; very likely
Pedigree

Citations

  1. [S1228] 1870 U.S. Federal Census , Winona, Winona Co., Minnesota; p. 37; line 18, dwl 265.

Legrand Houghton1

M, #107462, b. circa 1845

Biography

A Contributor to Houghton Surname ProjectN
Corresponded with authorN
Birthcirca 1845Canada, age 25, Canada, in 1870 census1
Occupation1870a carpenter
DuplicateWinona, MN, USA, similar mother and bd; diff country; very likely; note both in Winona MN
Pedigree

Citations

  1. [S1228] 1870 U.S. Federal Census , Winona, Winona Co., Minnesota; p. 37; line 18, dwl 265.

Frank Lucille Beeler1

F, #107463, b. 19 February 1881, d. 2 February 1966

Family: Ashley LeGrand Houghton b. 14 Feb 1873, d. 5 Feb 1951

Biography

A Contributor to Houghton Surname ProjectN
Corresponded with authorN
BirthFeb 19, 1881Doniphan, KS, USA, age 48 in 1930 census; age 58 in 1940 census1
MarriageJun 22, 1922Lane Co., OR, USA1
1930 Census1930Eugene, Lane Co., OR, USA, age 56, machinery comp. book keeper2
1940 Census1940Eugene, Lane Co., OR, USA, age 67, none3
DeathFeb 2, 1966Eugene, Lane Co., OR, USA1
ParentsDBoliver Beeler 1826 – 1914 & Helen J Abbott 1851 – 1914; India and Canada
Pedigree

Citations

  1. [S882] Ancestry.Com, online www.ancestry.com, http://trees.ancestry.com/tree/4535728/person/6061064789
  2. [S1233] 1930 U.S. Federal Census , Eugene, Lane, Oregon; Roll: 1946; Page: 2B; Enumeration District: 0037; Image: 776.0; FHL microfilm: 2341680.
  3. [S1479] 1940 U.S. Federal Census , Eugene, Lane, Oregon; Roll: T627_3368; Page: 4B; Enumeration District: 20-36.

William Henry Houghton1

M, #107464

Biography

Corresponded with authorN
A Contributor to Houghton Surname ProjectN
Black SheepAttempted murder and robbery
NoteFeb 11, 1963CA, USA, People v. Houghton
212 Cal. App. 2d 864

[Crim. No. 3364. Third Dist. Feb. 11, 1963.]

THE PEOPLE, Plaintiff and Respondent, v. WILLIAM HENRY HOUGHTON, Defendant and Appellant.

COUNSEL

William Henry Houghton, in pro. per., and Harry A. Ackley for Defendant and Appellant.

Stanley Mosk, Attorney General, and Edsel W. Haws, Deputy Attorney General, for Plaintiff and Respondent.

OPINION

PIERCE, P. J.

Appellant was convicted after a jury trial of (1) assault with intent to commit murder, (2) robbery, and, (3) violation of Penal Code section 12021 (possession of a gun by a felon). The indictment had charged appellant with two prior felony convictions, (1) robbery in the first degree and burglary in the second degree and, (2) robbery in the second degree, for each of which he had served a term in the state prison. Appellant had admitted the prior convictions. After conviction, appellant's motion for a new trial was denied and appellant was sentenced to the state prison for the term prescribed by law. It was further ordered that the term of imprisonment under count two, robbery of the first degree, should run consecutively with the term under count one, assault with intent to commit murder, and the term under count three, possession of a gun by a felon, should run consecutively with the term of imprisonment under count two. Appellant was adjudged a habitual criminal.

Appellant appeals from the judgment and from the order denying his motion for a new trial.

Appellant makes no attack upon the sufficiency of the evidence. His contentions made will be noted below. A statement of the evidence sufficient to make the contentions and our comment thereon understandable follows:

At 11 p.m. on the night of November 2, 1961, appellant entered the showroom of Kelly's Shell Service Station and stated to the sole attendant, George Kelly (16-year-old son of the proprietor): "Let's close the place up." He exhibited a revolver which he then placed in his pocket. He ordered Kelly to remove money from the cash register. Kelly did so [212 Cal. App. 2d 868] as directed. He was then ordered to, and did, carry the money to a restroom in the back of the service station. Appellant followed him into the restroom and took the money from him. Kelly was then ordered to face the wall. After he had done so he was ordered to put his hands behind his back. Appellant stated: "Move up a little higher" and then said, "I won't hurt you." Appellant's next move was to shoot Kelly in the back. He then left the scene. Kelly recovered and was a principal witness for the prosecution at the trial. He identified appellant as his assailant and described the incidents of the armed robbery and assault.

[1] Appellant took the stand at the trial and testified that he had been drinking heavily on the day of, and the day before, the crime and could not remember any of the events concerning the robbery. This, of course, would not excuse commission of the offenses. (Pen. Code, § 22.) Where, however, specific intent is a necessary element of the crime the jury may consider the fact of intoxication. However, the weight to be accorded the evidence of intoxication is a question of fact. (People v. Yeager, 55 Cal. 2d 374, 391 [10 Cal.Rptr. 829, 359 P.2d 261]; People v. Murphy, 1 Cal. 2d 37 [32 P.2d 635].) Testimony of prosecution witnesses raised a substantial conflict by describing actions showing that appellant knew what he was doing.

[2] Appellant's first contention is that the trial court committed prejudicial error by referring in its instructions on three occasions to a nonexistent "information" in referring to the robbery count. The accusation under which appellant was on trial was an indictment.

Reference to an "information" occurred during the court's instructions stating the rule that specific intent is a necessary element of the crime of robbery. Appellant's contention is that the reference left the impression with the jury that there was another accusatory pleading for robbery in existence. The contention is without substance. From the context of the instruction it is obvious the charge of robbery referred to by the judge was that for which the defendant was on trial and not some other offense. The mistake was either a slip of the tongue or clerical misprision in a written instruction. The jury could not possibly have been misled, if indeed any of its members knew the distinction between an indictment and an information. Realization by appellant's trial counsel of the insignificance of the mistake seems implicit [212 Cal. App. 2d 869] in the fact that he neither called the court's attention to the mistake nor made any objection thereto at the trial.

Appellant's next contentions relate to claimed misconduct of the deputy district attorney. During his argument this officer, in assigning a suggested reason for the act of appellant in shooting Kelly stated, "Ladies and gentlemen, this conviction makes him [defendant] a habitual criminal, which he is, and he couldn't leave that witness, sixteen year old boy or not, and the easiest way ... was to shoot him in the back and to kill him." Appellant contends that reference was prejudicial error since Penal Code section 644 "places the responsibility as to habitual criminality solely with the court and not the jury."

[3] There was no impropriety in argument by the district attorney that the shooting of the victim was an act prompted by the motive of disposing of him as the only eyewitness to the crime. Particularly is this true in view of appellant's contention that he was incapable of forming a specific intent due to intoxication. Evidence of appellant's prior convictions was properly before the jury, having been received in evidence for impeachment purposes on cross-examination and in proof of the charge of possession of a gun by an exconvict. (People v. Raquel, 125 Cal. App. 2d 384 [270 P.2d 528]; People v. DePrima, 172 Cal. App. 2d 109 [341 P.2d 840].) Under the circumstances present here, therefore, the district attorney's reference to appellant as a habitual criminal should not be deemed calculated to inflame the jury but rather as fair comment to convince the jury that the shooting was not the product of alcohol-induced "trigger- happiness" but done deliberately to escape detection. (See People v. Bryant, 154 Cal. App. 2d 121, 129 [315 P.2d 734].)

[4] Again, and even assuming an impropriety in the characterization which we do not believe to exist, it is to be noted that no objection or request that the jury be admonished, timely or otherwise, was made at the trial, absent which misconduct of the type here involved will normally be regarded as waived and not a ground for reversal. (See People v. Rosson, 202 Cal. App. 2d 480, 491 [20 Cal.Rptr. 833], where the district attorney referred to defendant as a "con" man.)

Appellant's next contention also involves statements of the district attorney said to inject his personal opinion of the guilt of the accused into the case. Appellant correctly states the rule that statements by a prosecuting attorney, not based [212 Cal. App. 2d 870] upon legitimate inferences from the evidence, that he has personal knowledge of defendant's guilt, or to the effect that he would not conduct the prosecution unless he believed the defendant to be guilty are misconduct. (People v. Kirkes, 39 Cal. 2d 719, 723 [249 P.2d 1]; People v. Warren, 175 Cal. App. 2d 233 [346 P.2d 64].) In People v. Kirkes, supra, the prosecutor had stated he knew and had known prior to the trial that defendant was guilty and he would not have participated in the prosecution otherwise.

The court in reversing for misconduct, quotes from an earlier case, People v. Edgar, 34 Cal.App. 459, 468 [167 P. 891], and says, on pages 723-724: "When the district attorney declared that he would not prosecute any man he did not believe to be guilty he thereby wrongfully placed his personal opinion of the guilt of the defendant in evidence in the case. He was privileged to argue to the jury that it was his opinion formed from deductions made from the evidence adduced at the trial that the defendant was guilty of the crime charged [citation]; but his declaration to the jury that he would not prosecute any man whom he did not believe to be guilty was tantamount to an assertion that he believed in the guilt of the defendant at the very inception of the prosecution; and necessarily such belief must have been founded upon the result of the district attorney's original and independent investigation of the charge, and therefore in all likelihood was based, in part at least, upon facts which did not appear and which perhaps could not have been shown in evidence."

We have tested the statements by the district attorney criticized here, reading them in context, and within the rule stated above. With one exception to be noted below we do not consider them to have been improper.

[5] The statement, "This is not, in my opinion, a proper case for trial in that there are no conflicts in the evidence," followed by the statement, "therefore, there isn't much for me to say" were merely expressions that the evidence had proved appellant's guilt conclusively.

[6] The next portion claimed improper (stated in context, with the portion objected to emphasized) was "Mr. Salamy [defendant's trial counsel] ... undoubtedly will not make any contention that this was not the gun with which George Kelly was shot, because Harry Johnson [criminologist of the State Bureau of Criminal Identification] says it was the gun. That is good enough for all of us,--and he [212 Cal. App. 2d 871] took a picture so that you can see for yourself, if you like. The fact that he said it was the gun is good enough for me." This is argument from the evidence and is proper.

[7] The statement, "Certainly as a prosecutor it is my job to enforce the law where the law has been violated and I have the man who did it, but not to play games to get a conviction of somebody whose guilt is not proved by evidence which is convincing beyond a reasonable doubt, and about that you shouldn't have any doubt," was but a correct statement of the function of a prosecutor. It was not, as appellant contends, a placing by the deputy district attorney of his personal opinion of the guilt of appellant in evidence.

[8a] Trial counsel for appellant having challenged the veracity of two peace officers by claiming that their testimony deviated from their reports, the deputy district attorney observed: "Mr. Salamy said that makes him a liar. He doesn't say he might be mistaken. He called Sergeant Radford a liar. Well, it is his conscience if he is going to be bandying about people's reputation and character so lightly. He knows the importance of such an accusation to a peace officer." He also stated in this connection (and this is the statement which is objected to): "I vouch for the credibility of Inspector Warner and Sergeant Radford 100 percent." (Italics added.)

It has been held not improper for a district attorney in refutation of a charge by the defense attorney that a police officer was lying to state in rebuttal: "Those people came in and told you the truth." (People v. Rosoto, 58 Cal. 2d 304, 365-367 [23 Cal.Rptr. 779, 373 P.2d 867].) But to "vouch" for is, by dictionary definition, to guarantee. It is stronger than a mere expression of opinion of veracity and it falls within the class of statements to be categorized as "placing the district attorney's personal opinion in evidence."

All of the other statements cited by appellant as misconduct were so clearly proper comments on the evidence that they need not be noted herein.

Since we do find the act of the deputy in vouching for the credibility of certain of his witnesses to be improper, the question arises: Was it prejudicial? It was not objected to and the court was not requested to admonish the jury. [9] It is stated in People v. Rosoto, supra, at page 357: "Misconduct in argument may not be assigned on the appeal if it is not assigned at the trial, unless the misconduct contributed [212 Cal. App. 2d 872] to the verdict or was so unredeemable that nothing whatever would have cured it. [Citation]"

[8b] We think that the remark here, though improper, was not so flagrant an abuse of propriety that it could not have been cured by a prompt admonition to the jury, had one been requested. (People v. Warren, 175 Cal. App. 2d 233 [346 P.2d 64].) Nor could it have been a contributing factor in the jury's verdict.

The evidence is not closely balanced on the question of the guilt or innocence of appellant. Evidence of his guilt was overwhelming. There has been no miscarriage of justice. (Cal. Const., art. VI, § 4 1/2.)

The last contention of appellant is the claim of double punishment arising from that portion of the judgment which prescribed the term of imprisonment under count two, robbery, shall run consecutively with the term under count one, assault with intent to commit murder, and that the term under count three, possession of a gun by a felon, shall run consecutively with count two.

Penal Code, section 654 provides, in part: "An act or omission which is made punishable in different ways by different provisions of this Code may be punished under either of such provisions, but in no case can it be punished under more than one. ..."

[10] This court, recently, in Downs v. State of California, 202 Cal. App. 2d 609 [20 Cal.Rptr. 922], had occasion to consider the rule and tests to determine the question of multiple punishment as set forth in Neal v. State of California, 55 Cal. 2d 11 [9 Cal.Rptr. 607, 357 P.2d 839], and People v. Knowles, 35 Cal. 2d 175 [217 P.2d 1], and, borrowing the language of Justice Traynor in the Neal case (on p. 19 thereof), we stated in our opinion in Downs (p. 612):

" 'If a course of criminal conduct causes the commission of more than one offense, each of which can be committed without committing any other, the applicability of section 654 will depend upon whether a separate and distinct act can be established as the basis of each conviction, or whether a single act has been so committed that more than one statute has been violated.' "

[11] We then noted that Justice Traynor had pointed out that few crimes are the result of a single physical act, and had said that the code section encompasses and prohibits double punishment for a course of conduct constituting even [212 Cal. App. 2d 873] more than one "act" in the ordinary sense if the transaction is indivisible. But the Neal opinion adds:

"Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one." (Italics added.)

In the Downs case, supra, it clearly appeared the burglary and robbery there perpetrated involved a single indivisible act and we held double punishment had been imposed. [12] We are not convinced here, however, that the acts were indivisible. The robbery had been accomplished prior to the assault, the facts showing there was a threat of force (by use of a gun) sufficient to put the victim in fear; he was put in fear and the robbery was thereby accomplished. The circumstances were such that the shooting could have been an afterthought. Strangely enough appellant's theory of defense--that he was so intoxicated he was incapable of a preconceived plan--lent added support to this theory. Thus we have the unusual circumstance of the prosecution urging a plan to kill, although not necessarily a preconceived one, while the defense suggests facts arguing against indivisibility. From the evidence appellant may have been sober enough to know what he was doing but drunk enough to make and act upon sudden and judgment-lacking impulse. Appellant was therefore properly punished for the offenses of robbery and assault with intent to commit murder. In In re Chapman, 43 Cal. 2d 385 [273 P.2d 817], the facts were very similar, the only distinction being that there the victim, having been robbed, was shot while running away. It was held that the trier of facts was warranted in concluding that the offenses were divisible transactions. (See also Seiterle v. Superior Court, 57 Cal. 2d 397 [20 Cal.Rptr. 1, 369 P.2d 697].)

In Neal v. State of California, supra, page 20, the court says: "... In People v. Slobodion, 31 Cal. 2d 555, 561-563 [191 P.2d 1], however, we sustained convictions for sex perversion and lewd and lascivious conduct, even though both acts were closely connected in time and a part of the same criminal venture since the act giving rise to the lewd and lascivious conduct was separate and distinct and was not incidental to or the means by which the act of sex perversion was accomplished." (Italics added.) [212 Cal. App. 2d 874]

The case of People v. Aldridge, 197 Cal. App. 2d 555 [17 Cal.Rptr. 304], relied upon by appellant is distinguishable. There the force which established the robbery was the same force which proved the assault. Appellant contends that because the victim Kelly was ordered into the restroom, the money taken from him there, and these two acts were immediately followed by the shooting, a single indivisible act is necessarily implied. We do not so regard it. It is possible that appellant may have had this shooting in mind at the outset. But also that may not have been his intent. The completion of the robbery was followed by the assurance to the victim to turn around and face the wall and he would not be harmed. The intent to kill may have been formulated then and only then.

[13] As regards the contention that the sentence under count three, possession of a gun by a felon, was indivisible, the evidence shows that appellant had obtained the gun at a bar on Rio Linda Boulevard on the afternoon of November 1 or 2, 1961. The robbery did not occur until 11 p.m. on November 2d. In the meantime appellant had once lost possession of the gun and had regained it. He had been gun-toting for hours and had once fired the gun in his brother's home. These facts were sufficient to justify sentencing on both the robbery and possession counts. (People v. Israel, 91 Cal. App. 2d 773 [206 P.2d 62].)

The order denying motion for new trial, being nonappealable (Pen. Code, § 1237), is dismissed. The judgment is affirmed.

Schottky, J., and Friedman, J., concurred.
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Pedigree

Citations

  1. [S654] Electronic Web Site, , http://law.justia.com/cases/california/calapp2d/212/…

Kenneth Houghton1

M, #107465

Biography

Corresponded with authorN
A Contributor to Houghton Surname ProjectN
Black Sheep1989drug conviction
NoteNov 15, 1989NY, USA, 155 A.D.2d 883 (1989)
The People of the State of New York, Respondent,
v.
Kenneth Houghton, Appellant

Appellate Division of the Supreme Court of the State of New York, Fourth Department.
November 15, 1989

All concur, except Callahan, J. P., who dissents and votes to reverse, in the following memorandum.

Present — Callahan, J. P., Denman, Green, Pine and Balio, JJ.

Judgment affirmed.

Memorandum:

Defendant contends that the court committed reversible error in precluding defense witness Roe from testifying about defendant's statements during one of the drug transactions for which he was convicted. According to defendant, such statements were admissible under the state of mind exception to the hearsay rule and would have shown that defendant took no part in the transaction or that he was at most an agent for the buyer. There is nothing in the record to suggest that defense counsel was attempting to elicit defendant's statements under the state of mind exception. Indeed, defense counsel implied that he was not attempting to elicit defendant's statements. In the absence of proof about the contents of the statements sought to be admitted, it is impossible to determine whether they came within any exception to the hearsay rule.

In explaining to the jury why testimony was precluded by the hearsay rule, the Judge informed the jury that he would not permit the witness to testify to defendant's out-of-court statements because defendant was not subject to cross-examination. Defendant claims, and the dissent concludes, that such instruction impermissibly referred to defendant's failure to testify. Defendant did not object to the court's statement and has thus failed to preserve that claim for review. If we were to review it in the interest of justice, we would conclude that defendant was not deprived of a fair trial. Although the court's instruction indirectly alluded to defendant's failure to take the stand, and to that extent was improper, the court was merely attempting to explain the rationale behind its hearsay ruling. The court's remark did not constitute an unfavorable comment upon defendant's decision not to take the stand. Therefore, any error was harmless (see, People v Koberstein, 66 N.Y.2d 989, 990-991). Additionally, in its final charge, the court instructed the jury, pursuant to defendant's request, that defendant's failure to testify must not give rise to any unfavorable inference. These factors distinguish this case from People v McLucas (15 N.Y.2d 167), cited in the dissent. In McLucas, the court in its final charge to the jury 884*884 made repeated unfavorable comment upon defendant's failure to testify, in violation of the Fifth Amendment and section 393 of the former Code of Criminal Procedure.

We have reviewed the additional claim asserted by defendant and find that it does not require reversal.

Callahan, J. P., (dissenting).

I respectfully dissent. In my view, the court's comments about defendant's opportunity to testify were patently improper and constituted reversible error even in the absence of a proper objection (see, People v McLucas, 15 N.Y.2d 167; People v Mercado, 120 AD2d 619).

The record reveals that in precluding a defense witness from testifying about statements made by defendant, the court instructed the jury: "I'll not allow, I mean, you are not to consider the testimony of this or any other witness as to what the defendant says. If the defendant is going to testify, he will testify. Otherwise, he is not subject to cross-examination. There is no possible way of refutation." The court further stated: "I am not going to allow this or any trial for the defendant to testify through someone else without taking the witness stand." (Emphasis added.) Such judicial comments made during trial which explicitly allude to defendant taking or not taking the stand clearly violate defendant's Fifth Amendment right to choose not to testify in his own behalf without adverse comment or prejudice.

It is axiomatic that a defendant's failure to testify "is not a factor from which any inference unfavorable to him may be drawn" (CPL 60.15 [2]; see also, Chapman v California, 386 US 18, 26, reh denied 386 US 987; Griffin v California, 380 US 609, 614-615, reh denied 381 US 957; People v McLucas, supra; People v Armstrong, 31 AD2d 447, 453).

The Fifth Amendment, applicable to the States by the Fourteenth Amendment (see, Malloy v Hogan, 378 US 1), "forbids either comment by the prosecution on the accused's silence or instructions by the court that such silence is evidence of guilt" (Griffin v California, supra, at 615). Judicial comment alluding to defendant's decision not to avail himself of his right to testify is impermissible, except to counteract improper prosecutorial remarks or instructing the jury not to indulge in any presumption against an accused because of his choice (see, People v McLucas, supra; Ruloff v People, 45 N.Y. 213, 222).

Since the statements of the Trial Judge tend to deprive 885*885 defendant of the full protection of his right not to have unfavorable inferences drawn from his failure to testify in his own behalf, it is reversible error (People v McLucas, supra; People v Mercado, supra). It cannot be said that this constitutional error was harmless beyond a reasonable doubt and thus reversal is required (Chapman v California, supra, at 24; People v Crimmins, 36 N.Y.2d 230, 237).1
Pedigree

Citations

  1. [S654] Electronic Web Site, , http://scholar.google.com/scholar_case

Thomas Arthur Houghton1

M, #107466

Biography

Corresponded with authorN
A Contributor to Houghton Surname ProjectN
Research1976He was exonerated and freed on charge of having a billy club in his possession.
NoteMar 26, 1976NY, USA, 86 Misc.2d 925 (1976)
The People of the State of New York, Plaintiff,
v.
Thomas Arthur Houghton, Defendant.

County Court, Fulton County.
March 26, 1976

Robert L. Maider, District Attorney, for plaintiff. Michael F. Geraghty for defendant.

MARIO M. ALBANESE, J.

Defendant was indicted for the crime of criminal possession of a weapon in the third degree in violation of subdivision (1) of section 265.01 and subdivision (1) of section 265.02 of the Penal Law of the State of New York, committed as follows: "The defendant, in the County of 926*926 Fulton, New York, on or about the 16th day of August, 1975, had a billy club in his possession."

Inasmuch as defendant had a prior conviction, a special information was attached to the indictment thereby increasing this alleged violation from a misdemeanor to a felony.

Trial was had before the court sans a jury, the defendant having signed in the court's presence a waiver of jury which was approved by the court.

The People's case consisted entirely of two police officers of the Gloversville, New York, Police Department, Patrolmen Daniel Reich and Michael O'Brien. Their respective testimonies were substantially the same, both testifying that upon reporting for work on August 16, 1975, at 2:00 P.M., they were given a warrant for the arrest of the defendant, Thomas Arthur Houghton, on a charge of harassment. Having missed the defendant at his home where they had hoped to serve him with said warrant, they luckily saw him driving a car about the city and eventually caught up with the defendant on Bleecker Street where they ordered him to stop his car at curb side. This, the defendant did. Alighting from the police car, Officer Reich went to the driver's side of defendant's vehicle and Officer O'Brien went to the passenger's side. While Officer Reich was in the process of arresting the defendant under said warrant, Officer O'Brien claims to have noticed in defendant's vehicle, an object protruding near the defendant's side which this officer reached in and confiscated, believing it to be defendant's billy club. This particular object was offered and received into evidence sans objection as People's exhibit No. 2. In concluding, the policemen admit the so-called weapon was not on the defendant's person at the time of confiscation; that defendant did not make any effort to stop the police from taking the same although he did deny its ownership; that he was not committing a crime when arrested, and he never used the alleged weapon in question.

Defendant, testifying on his own behalf, acknowledged being stopped on August 16, 1975 by Officers Reich and O'Brien on a warrant of harassment; however, denies the so-called billy club was ever on his person or near his side. As a matter of fact, claims the car then being driven by him was his father's and did not know it (the billy club) was in the car even. Further, he states what the arresting officers designate as a billy club is in fact a miniature bat made by his young brother-in-law in the Estee Middle School. Received in evidence 927*927 as Defendant's exhibit "A" was a written statement by Donald Strathaus, industrial arts teacher at said school, wherein Mr. Strathaus stated People's exhibit No. 2 was a miniature or scale model bat made by one Tom Gifford, brother-in-law of the defendant, in his industrial arts class as a learning experience.

Also testifying on behalf of the defendant was his wife and father, neither testimony being critical to this decision.

As set forth in the indictment herein, the defendant is charged with possession of a "billy club".

"§ 265.01 Criminal possession of a weapon in the fourth degree.

"A person is guilty of criminal possession of a weapon in the fourth degree when:

"(1) He possesses any firearm, gravity knife, switchblade knife, cane sword, billy, blackjack, bludgeon, metal knuckles, chuka stick, sand bag, sandclub or slungshot; or * * *"

From a reading of the statute, it is readily apparent the item or term "billy club" is not listed as a proscribed contraband. Notwithstanding such absence, the court considers and will treat the term "billy" to be the generic term within which the item billy club is included. Having so decided, that is not to say or conclude that the item in question is in fact a per se billy or "a per se weapon" within the purview of the statute (People v Diamond, 77 Misc 2d 412) as is obvious with say a firearm, gravity or switchblade knife, metal knuckles, etc. No evidence was submitted or showing made by the People setting forth what constitutes a billy club or what its elements, attributes or characteristics are. The court on its own, searched the Penal Law for a definition and/or description thereof, all to no avail since the Penal Law does not define such a term. Following this, Words and Phrases were consulted but such was of little or no help since it defines a billy as a club carried by a policeman, which is general knowledge still leaving the court's search unresolved. Resort was then had to the Police Manual wherein various types of billies are shown to contain two essential factors, elements or characteristics missing from the supposed weapon or billy club in the instant case. They are: (1) thong or palm grip, and (2) lead weights at the bottom of the billy. It is noted in this same Police Manual, that a so-called billy club was also listed being 14 inches in length, but * * * also containing a palm grip or thong.

928*928The so-called weapon in the case at hand is an item the defendant claims is a miniature bat and so fabricated in the Estee Middle School industrial arts class by one Tom Gifford, his brother-in-law. This miniature bat is 12 inches long, weighs 6½ ounces and contains no thong or palm grip at all. To the court, it appears to be just that — a mini bat, so to speak, one that does not appear much different than mini bats sold at baseball parks across the country although the workmanship and finish to this particular mini bat leaves much to be desired.

Obviously, the People by virtue of the indictment, contend that so-called mini bat is a billy club although as aforestated, submit no evidence to support such a contention. The first issue, then, to be resolved by the court is — is the item in question a billy club within the fair import of the law? The court thinks not. Not only is the mini bat herein not made in the likeness or contain the elements of a billy club as shown in the Police Manual, to wit: no thong, palm grip or lead weights at the end, but also, and perhaps of greater importance, because of the utter failure or omission on the part of the People to offer any proof whatsoever concerning the essential attributes, elements or characteristics of a billy club and to demonstrate said mini bat herein has those particular elements, attributes or characteristics, whatever they may be.

In so doing, there is no mistaking or illusion by the court that this mini bat could not cause damage if used improperly — it could; however, that is likewise true for almost every man-made object on earth. The classic, and oft used example, a fountain pen stuck in the eye of an individual certainly is a weapon when so improperly used. The same can be said with respect to a pencil, a cane, a golf stick, an umbrella, a crutch, or even a violin. Is that to say that any and all such items so found upon or in the possession of an individual are ipso facto to be construed as weapons without anything more? This court does not believe that the law was so intended and certainly will not be construed as such. The Appellate Division, Third Department, although referring to the term billy as a dangerous instrument, not weapon, held: "the length of the particular object is not determinative, but the purpose for which it was designed." (Emphasis added.) (People v Schoonmaker, 40 AD2d 1066.) An article, an instrument or an item or substance which is not designed as a weapon or which ordinarily has a legitimate function, i.e. a fountain pen, a golf stick, a violin and the like, cannot be simply converted or 929*929 tarred with the attributes or characteristics of the prohibited contraband of section 265.01 of the Penal Law without proof substantiating the same. So, too, the mini bat confiscated by the police in this matter. It is not inherently, nor was it designed as, a weapon within the meaning or import of the pertinent statute and absent proof to the contrary as to its nature, the People fail in their burden.

As an aside, although we do not deem it necessary to pass upon the following at this time, it would seem that where an object is not designed as a weapon or has a legitimate function but is nevertheless being held as a prohibited weapon by law enforcement officials, then in those particular situations it would also be necessary to prove, in addition to possession, its use, attempt or threatened use in a manner rendering it readily capable of causing death, or other serious physical injury as is now indicated when dealing with a dangerous instrument.

In any event, the court did not concern itself with the matter of use in coming to a decision herein. Likewise, the court did not concern itself with other necessary elements or aspects of this case such as possession, the motions by the People to strike testimony of various witnesses for defendant, or motions or testimony by the defense for that matter since the holding hereinabove set forth makes it unnecessary to do so.

Needless to say, it is the burden of the People to prove each and every element of this charge against the defendant, the first of which is whether or not the so-called mini bat is a billy club within the meaning of section 265.01 of the Penal Law, a factual question for this court to determine and which the court holds the People have failed to prove beyond a reasonable doubt.

In conclusion, I find the defendant not guilty of the charge under the indictment; accordingly, the indictment is dismissed, the defendant freed and bail, if any, exonerated.1
Pedigree

Citations

  1. [S654] Electronic Web Site, , http://scholar.google.com/scholar_case

Sandra K Houghton1

F, #107467

Biography

Corresponded with authorN
A Contributor to Houghton Surname ProjectN
Research1999Wyoming v. Houghton, 526 U.S. 295 (1999), is a United States Supreme Court case which held that absent exigency, the warrantless search of a passenger's container capable of holding the object of a search for which there is probable cause is a violation of the Fourth Amendment to the United States Constitution, but justified under the automobile exception as an effect of the car.
In Houghton, the Supreme Court was confronted with the question of whether the scope of a vehicle exception search included a passenger's purse. The car had been stopped by a police officer for a faulty brake light, and the driver was promptly observed to have a syringe in his shirt pocket. He admitted he used it to shoot up. A backup police car soon arrived, and the passengers were ordered out of the car. Ms. Houghton gave a false name. While looking through her purse, an officer found her driver's license and, thus, her real name. Continuing the search, the officer found a syringe with 60 ccs of methamphetamine. Looking at her arms, he saw fresh needle tracks. She was arrested.[1]

The trial court denied her motion to suppress and she was convicted. On appeal, the Wyoming Supreme Court reversed because the officers lacked probable cause to search her purse simply based on the driver's possession of a syringe.
The Supreme Court reversed, 6–3. Justice Scalia, writing for the majority, stated that all Fourth Amendment inquiries look first to the intent of the Framers of the Constitution. If that does not provide an answer, then we must evaluate the search or seizure under traditional standards of reasonableness by assessing, on the one hand, the degree to which it intrudes upon an individual's privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.

Looking to Carroll v. United States,[2] the first automobile exception case from 1925, the Court found there that the Framers would hold that the whole car could be searched if there was probable cause to believe it contained contraband. Likewise, the Court opined in United States v. Ross[3] that the Carroll doctrine permitted searches of all containers found in a vehicle there was probable cause to search.
Wikipedia
Note1999WY, USA, During a routine traffic stop, a Wyoming Highway Patrol officer noticed a
hypodermic syringe in the driver’s shirt pocket, which the driver admitted
using to take drugs. The officer then searched the passenger
compartment for contraband, removing and searching what respondent,
a passenger in the car, claimed was her purse. He found drug paraphernalia
there and arrested respondent on drug charges. The trial
court denied her motion to suppress all evidence from the purse as the
fruit of an unlawful search,
Black Sheep1999Supreme Court Case: felony drug possession of meth
NotableWyoming v. Houghton: Supreme Court case related to warrantless searches
Pedigree

Citations

  1. [S654] Electronic Web Site, , http://supreme.justia.com/cases/federal/us/526/295/…

Lindsey Nichole Houghton1

F, #107468

Biography

Corresponded with authorN
A Contributor to Houghton Surname ProjectN
Black Sheep2012drunk driving
NoteOct, 2012TX, USA, Court of Appeals of Texas,Fort Worth.

The STATE of Texas, State v. Lindsey Nichole HOUGHTON, Appellee.
No. 02–11–00375–CR.
Decided: October 25, 2012
PANEL: LIVINGSTON, C.J; GARDNER and MEIER, JJ. Charles M. Mallin, for The State of Texas. Grant St. Julian, for Lindsey Nichole Houghton.

OPINION

I. Introduction

The State appeals from the trial court's written order granting Appellee Lindsey Nichole Houghton's motion to suppress evidence. The State argues in two points that the trial court erred by granting Houghton's motion to suppress because reasonable suspicion supported the traffic stop of Houghton's vehicle. Houghton has not filed a brief on appeal. We affirm.

II. Background

Houghton was charged with driving while intoxicated and filed a written motion to suppress. Officer Mark Epps was the only witness who testified at the suppression hearing. The State and Houghton stipulated that the scope of the hearing was the validity of the traffic stop. The trial court also watched the video recording from Officer Epps's in-car camera.

Officer Epps testified that he has been a certified peace officer with the University of Texas at Arlington Police Department since December 2008 and that he had undergone “special training pertaining to DWI investigations” and “detecting signs that a person's intoxicated.” He did not otherwise explain the nature of his training.

Officer Epps testified that he worked the third shift on January 15, 2011, that he was in uniform and in a marked patrol unit, and that there are known drinking establishments in the area. Officer Epps testified that he was conducting radar enforcement and sitting stationary in his vehicle when he first noticed Houghton's vehicle. He could not remember what drew his attention to Houghton's vehicle but testified, “[I]t was probably just going to be excessive speed over 35. I can't remember.” He also testified that he observed Houghton's vehicle “weaving from the left to right within the lane.”1

Officer Epps testified that he began following Houghton's vehicle and that he saw her “swerving.” He also stated, “The defendant, she was driving a silver Ford Mustang. When I got behind the vehicle, it immensely slowed its speed. Then I observed the vehicle swerving from left to right and then it drove left of center in about the 300 block of South Cooper Street.”

After the trial court admitted Officer Epps's in-car video recording, which reflects that he stopped Houghton at 3:16 a.m., Officer Epps described what was depicted on the video as follows: “[T]he vehicle, when it came through the 300 block of South Cooper Street, it drove left of the center line, the yellow line, and it failed to make a left turn, and it came back into the lane closest to the center while driving northbound.” Officer Epps further testified that weaving can indicate impairment and that “[g]iven the time of night and the—the vehicle slowing down and swerving before, it usually, in my opinion, indicates intoxication.” Officer Epps agreed in response to questioning by the prosecutor that a vehicle weaving on a street after 2:00 a.m. on Saturday morning can be evidence of impairment.

On cross-examination, Officer Epps testified that he did not see Houghton leaving any bar on Cooper Street and that he could not recall how far Houghton's vehicle was from his location when he first observed it. Officer Epps agreed that Houghton's vehicle had remained within its lane when he saw it weaving before he turned on his recording device. He explained that “it was because she drove left of center which is what gave me probable cause to pull the vehicle over,” but he also stated that the tire of Houghton's vehicle touched but did not cross the center line. This exchange followed:

Q. Okay. And it touched the line, and about how far of a distance did you follow the defendant's vehicle, would you estimate?

A. Approximately, six blocks.

Q. Okay. And you're saying that her tire touched the line one time in six blocks and you believe that gave you reasonable suspicion to make the stop?

A. Yes, sir.

The State then questioned Officer Epps as follows:

Q. Officer Epps, I just want to clarify. Can you tell us what—can you tell us what circumstances you took into consideration when you made the decision to pull the defendant over?

A. Yes. It was the—on the day, the time of night, and Cooper Street is generally known for having vehicles using it as a means to get home quickly. Usually, my experience is for people who are intoxicated at that time of night, will do—who move within their lanes or within a lane and then cross left of center and drive on the other side of the road.

Q. So did you take the totality of the circumstances into consideration that the defendant could possibly be impaired?

A. Yes, ma‘am.

The trial court granted Houghton's motion to suppress at the conclusion of the hearing. The trial court also denied the State's motion to reconsider but granted the State's requests for findings of fact and conclusions of law and for “specific findings” and “conclusions addressing evidence.” The trial court's first set of factual findings largely recite Officer Epps's testimony and we thus do not repeat them here.2 The trial court's conclusions of law, which include a determination that Officer Epps's testimony was not credible, are as follows:

1. The initial observation of the defendant's vehicle on South Cooper Street did not involve a traffic violation, insofar as the officer stated he could not remember if the defendant's vehicle was speeding.

2. The detention of the vehicle by the officer based on the testimony elicited, and the DVD evidence presented was not based on reasonable suspicion or probable cause, as the court did not find the officer's testimony to be credible, based on his lack of memory of the incident, and his poor skill at recounting the event. The testimony of the officer was more an agreement with the prosecutor, rather than the officer stating in his own words that he reached the conclusions arriving at reasonable suspicion or probable cause that served as the basis for the stop himself, supported by his own observations.

3. The defendant was under temporary detention at the time the vehicle was stopped and she was approached by Officer Epps.

4. The temporary detention was not lawful, as it was not subsequent to a lawful traffic stop.

5. Any evidence obtained subsequent to the unlawful detention should be suppressed.

The trial court also made additional findings, indicating on an order prepared by the State that it made the following additional findings of fact:3

a. Based upon the trial court's previous finding regarding Officer Epps' credibility, the trial court specifically disbelieved all of the testimony of the officer.

e. The court further specifies that the State's evidence showed that the temporary detention of Defendant Houghton's vehicle was not supported by reasonable suspicion or probable cause because the officer's testimony was wholly incredible.

f. The court further specifies that the State's evidence showed that the temporary detention of Defendant Houghton's vehicle was not supported by reasonable suspicion or probable cause because the officer's testimony was incredible pertaining to Defendant Houghton's driving behavior.

g. The court further specifies that the State's evidence showed that the temporary detention of Defendant Houghton's vehicle was not supported by reasonable suspicion or probable cause because the officer's testimony regarding the reasons for stopping Defendant Houghton's vehicle were not credible.

h. The court further specifies that the State's evidence showed that the temporary detention of Defendant Houghton's vehicle was not supported by reasonable suspicion or probable cause because the officer's testimony was not credible with respect to any possible speeding violation.

III. Standard of Review

We review a trial court's ruling on a motion to suppress evidence under a bifurcated standard of review. Amador v. State, 221 S.W.3d 666, 673 (Tex.Crim.App.2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997). In reviewing the trial court's decision, we do not engage in our own factual review. Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App.1990); Best v. State, 118 S.W.3d 857, 861 (Tex.App.-Fort Worth 2003, no pet.) The trial judge is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given their testimony. Wiede v. State, 214 S.W.3d 17, 24–25 (Tex.Crim.App.2007); State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App.2000), modified on other grounds by State v. Cullen, 195 S.W.3d 696 (Tex.Crim.App.2006). Therefore, we give almost total deference to the trial court's rulings on (1) questions of historical fact, even if the trial court's determination of those facts was not based on an evaluation of credibility and demeanor, and (2) application-of-law-to-fact questions that turn on an evaluation of credibility and demeanor. Amador, 221 S.W.3d at 673; Montanez v. State, 195 S.W.3d 101, 108–09 (Tex.Crim.App.2006); Johnson v. State, 68 S.W.3d 644, 652–53 (Tex.Crim.App.2002). But when application-of-law-to-fact questions do not turn on the credibility and demeanor of the witnesses, we review the trial court's rulings on those questions de novo. Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d 604, 607 (Tex.Crim.App.2005); Johnson, 68 S.W.3d at 652–53.

Stated another way, when reviewing the trial court's ruling on a motion to suppress, we must view the evidence in the light most favorable to the trial court's ruling. Wiede, 214 S.W.3d at 24; State v. Kelly, 204 S.W.3d 808, 818 (Tex.Crim.App.2006). When the trial court makes explicit fact findings, we determine whether the evidence, when viewed in the light most favorable to the trial court's ruling, supports those fact findings. Kelly, 204 S.W.3d at 818–19. We then review the trial court's legal ruling de novo unless its explicit fact findings that are supported by the record are also dispositive of the legal ruling. Id. at 818.

The State argues that we are not required in this case to give almost total deference to the trial court's factual determinations because witness credibility and demeanor are not at issue with the video recording and because the video recording contradicts the trial court's factual determinations. The court of criminal appeals has held, however, that “a trial court's determination of historical facts based on a videotape recording is still reviewed under a deferential standard.” Carter v. State, 309 S.W.3d 31, 40 (Tex.Crim.App.2010); Montanez, 195 S.W.3d at 109; see also State v. Gobert, 275 S.W.3d 888, 891–92 & n. 13 (Tex.Crim.App.2009). Cf. Carmouche v. State, 10 S.W.3d 323, 332 (Tex.Crim.App.2000) (noting bifurcated standard of review that requires “almost total deference to a trial court's determination of the historical facts that the record supports” but declining to give that level of deference in that case because “the videotape present[ed] indisputable visual evidence contradicting essential portions of [the officer's] testimony”). We thus give almost total deference to the trial court's factual determinations unless the video recording indisputably contradicts the trial court's findings. Compare Carter, 309 S.W.3d at 40, with Carmouche, 10 S.W.3d at 332.

IV. Applicable Law

The Fourth Amendment protects against unreasonable searches and seizures by government officials. U.S. Const. amend. IV; Wiede, 214 S.W.3d at 24. To suppress evidence because of an alleged Fourth Amendment violation, the defendant bears the initial burden of producing evidence that rebuts the presumption of proper police conduct. Amador, 221 S.W.3d at 672; see Young v. State, 283 S.W.3d 854, 872 (Tex.Crim.App.), cert. denied, ––– U.S. ––––, 130 S.Ct. 1015, 175 L.Ed.2d 622 (2009). A defendant satisfies this burden by establishing that a search or seizure occurred without a warrant. Amador, 221 S.W.3d at 672. Once the defendant has made this showing, the burden of proof shifts to the State, which is then required to establish that the search or seizure was conducted pursuant to a warrant or was reasonable. Id. at 672–73; Torres v. State, 182 S.W.3d 899, 902 (Tex.Crim.App.2005); Ford v. State, 158 S.W.3d 488, 492 (Tex.Crim.App.2005).

A law enforcement officer may lawfully stop a motorist when the officer has probable cause to believe that the motorist has committed a traffic violation. Walter v. State, 28 S.W.3d 538, 542 (Tex.Crim.App.2000). However, a police officer may also lawfully stop a motorist when, based on the totality of the circumstances, he has reasonable suspicion for a temporary investigation on less than probable cause if the officer has specific articulable facts that, combined with rational inferences from those facts, would lead him reasonably to conclude that the person is, has been, or soon may be engaged in criminal activity. Derichsweiler v. State, 348 S.W.3d 906, 914 (Tex.Crim.App.), cert. denied, ––– U.S. ––––, 132 S.Ct. 150, 181 L.Ed.2d 67 (2011) (citing Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968)); Carmouche, 10 S.W.3d at 328. “Reasonable suspicion” is an objective standard that disregards any subjective intent or motivation of the officer making the stop and looks solely to whether an objective basis for the stop exists.4 Ford, 158 S.W.3d at 492; see Derichsweiler, 348 S.W.3d at 914. To satisfy the standard of reasonable suspicion, the articulable facts need not lead inexorably to a conclusion that a particular penal code offense is imminent. Derichsweiler, 348 S.W.3d at 916–17. It is enough to satisfy the standard that the information is sufficiently detailed and reliable to support more than an “inarticulate hunch” that something of an apparently criminal nature is brewing. Id. at 917.

V. Discussion

The State contends in its two points that the trial court's legal conclusion concerning the lack of reasonable suspicion is erroneous and that the trial court's factual determinations constitute an abuse of discretion because they contradict the “objective” evidence shown on Officer Epps's in-car video recording. Specifically, the State argues that the video recording shows two traffic violations as well as other erratic driving.5

We first consider the State's contentions concerning traffic code violations. See Walter, 28 S.W.3d at 542 (holding that a law enforcement officer may lawfully stop a motorist when the officer has probable cause to believe that the motorist has committed a traffic violation); Garcia v. State, 827 S.W.2d 937, 944 (Tex.Crim.App.1992) (holding that an officer may lawfully stop and reasonably detain a person for a traffic violation). The State asserts that the video recording shows that Houghton violated transportation code section 545.060. The State does not, however, clarify whether it relies on section 545.060(a) or (b), explain how Houghton allegedly violated section 545.060, or cite any authority that would compel the conclusion that Houghton violated section 545.060. Even so, given Officer Epps's testimony, we presume that the State relies on section 545.060(a), which provides that “ at an unknown age n operator on a roadway divided into two or more clearly marked lanes for traffic: (1) shall drive as nearly as practical entirely within a single lane; and (2) may not move from the lane unless that movement can be made safely.” Tex. Transp. Code Ann. § 545.060(a) (West 2011) (emphasis added); see Fowler v. State, 266 S.W.3d 498, 502, 504 (Tex.App.-Fort Worth 2008, pet. ref'd) (en banc) (summarizing section 545.060(a) as prohibiting movement “out of a marked lane when it is not safe to do so”).

Our review of the video recording confirms that the left-side tires of Houghton's vehicle briefly touched but did not cross the double-yellow line approximately forty-two seconds after the recording began. The State, however, presented no evidence at the suppression hearing that this maneuver was performed in an unsafe manner. Officer Epps testified only that Houghton's vehicle “drove left of the center line, the yellow line, and it failed to make a left turn, and it came back into the lane closest to the center while driving northbound.” He did not elaborate as to any articulable facts that he observed that would support a finding that Houghton made the maneuver in an unsafe manner. See Ford, 158 S.W.3d at 493 (holding officer's conclusory testimony that motorist was following too closely failed to present specific, articulable facts to support traffic violation of “following too closely”); Fowler, 266 S.W.3d at 504 (addressing section 545.060(a) and holding that absent any testimony by officer of busy traffic or other factors indicating unsafe maneuver such as crossing over into oncoming traffic, there was no evidence that the “failure to drive in a single lane was unsafe”). The video recording likewise does not “indisputably” show that Houghton's vehicle failed to maintain a single lane in an unsafe manner, unlike the video in Carmouche, in which the court of criminal appeals declined to defer to the trial court's determination of historical facts where “indisputable visual evidence” shown in the video contradicted the officer's testimony. See 10 S.W.3d at 332. One other car appears on the video near the time Houghton's vehicle touched the double-yellow line, but that car does not appear to have been in proximity to Houghton's vehicle. Without explanation from Officer Epps as to observations by him as to why Houghton's maneuver was unsafe (and thus in violation of transportation code section 545.060(a)), we cannot say that the stop of Houghton's vehicle was justified solely based on an alleged violation of section 545.060. See Ford, 158 S.W.3d at 493; Fowler, 266 S.W.3d at 504 (noting absence of evidence that traffic maneuver was performed in unsafe manner and stating that “ at an unknown age n officer's reasonable suspicion of an alleged traffic violation cannot be based on a mistaken understanding of traffic laws.”).

The State also argues that the video recording shows a violation of transportation code section 544.004 because Houghton drove her vehicle “across the lined demarcation for a designated left-turn lane.” First, the State did not raise this section 544.004 argument until its motion for reconsideration. Nothing in the record suggests that Officer Epps observed before the traffic stop that Houghton allegedly violated section 544.004 by crossing the white line separating the left-turn lane from the regular lane of traffic. Officer Epps did not mention it during any portion of his testimony, nor did the State question Officer Epps about the movement into the left-turn lane during the suppression hearing. Moreover, the State did not argue at the suppression hearing that the movement into the left-turn lane constituted a traffic violation that gave Officer Epps either probable cause or reasonable suspicion to stop Houghton's vehicle or even that crossing the white line was one of the articulable facts relied upon by the officer that the trial court should consider as part of the totality of the circumstances.

In a very similar case that also involved a video recording of the events leading to the stop of a defendant's vehicle, our sister court recently held that because the officer “was not consciously aware of any signaling violation” at the time of the stop, the court could not include the alleged traffic violation as “part of the objective calculus” it considered for determining whether reasonable suspicion supported the traffic stop. State v. Smith, Nos. 05–11–00742–CR, 05–11–00743–CR, 2012 WL 1059703, at *4–5 (Tex.App.-Dallas Mar.30, 2012, pet. ref'd) (not designated for publication) (affirming order granting motion to suppress). In Smith, the State even questioned the officer about the alleged signaling violation during the suppression hearing. Id. Here, neither the State nor Officer Epps mentioned or alluded to an alleged violation of section 544.004 at any time during the hearing. Thus, we will not consider the post hoc argument of the State regarding the alleged violation of section 544.004 as an independent basis to support the stop of Houghton's vehicle nor even as a factor to consider as part of the totality of the circumstances establishing reasonable suspicion as the basis for the stop.

To establish reasonable suspicion, the state must show that, at the time of the detention, the officer had specific, articulable facts that established reasonable suspicion. Terry, 392 U.S. at 21–22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (holding that in justifying the particular intrusion, “the facts [must] be judged against an objective standard: would the facts available to the officer at the moment of the seizure or the search ‘warrant a man of reasonable caution in the belief’ that the action taken was appropriate?” (emphasis added)); Martinez v. State, 348 S.W.3d 919, 924 (Tex.Crim.App.2011) (holding anonymous tip that provided no identification to dispatch, was not shown to have maintained contact with dispatch, did not follow suspect vehicle, was not present at scene before the stop, and arrived at scene and provided officer with identifying information only after the stop, was not sufficient, stating “the reasonableness of official suspicion must be measured by what the officers knew before they conducted their search; reasonable suspicion cannot be obtained retroactively.” (emphasis added) (citations omitted)); St. George v. State, 237 S.W.3d 720, 726 (Tex.Crim.App.2007) (noting holding in Terry that “an officer's actions [in effecting a detention] must be justified at its inception” and holding passenger's providing of a false name when officers did not know it was false could not give them reasonable suspicion to investigate further when driver had already been issued a warning citation and purpose for stop had ended).

Generally, law enforcement action can only be supported by facts the officer was “actually aware of at the time of that action.” State v. Ruelas, 327 S.W.3d 321, 326–27 (Tex.App.El Paso 2010, pet. ref'd). As stated by the court in Ruelas, “The preference for objective standards, however, does not apply to the facts on which officers act.” Id. at 326 (holding officer lacked reasonable suspicion where it was not until suppression hearing when state was questioning motorist defendant that officer learned of facts suggesting he violated traffic code by making left turn into right-hand lane); Swaffar v. State, 258 S.W.3d 254, 258 (Tex.App.-Fort Worth 2008, pet. ref'd) (declining to consider stop sign violation in determining whether reasonable suspicion supported traffic stop because officer first learned of facts suggesting violation upon later reviewing in-car videotape); State v. Griffey, 241 S.W.3d 700, 703–04 (Tex.App.Austin 2007, pet. ref'd) (holding reasonableness of detention determined in terms of totality of circumstances “at its inception” and court looks “only at those facts known to the officer at the inception of the stop”); see also United States v. Lewis, 672 F.3d 232, 237–38 (3d Cir.2012) (stating that “ex post facto justifications are impermissible” and holding that government could not rely on defendant's illegal window-tinting in absence of evidence that defendant was stopped for illegal window tint); see generally Florida v. J.L., 529 U.S. 266, 271, 120 S.Ct. 1375, 1379, 146 L.Ed.2d 254 (2000) (“The reasonableness of official suspicion must be measured by what the officers knew before they conducted their search.”).6

Additionally, the video recording does not “indisputably” show a violation of transportation code section 544.004, as contended by the State on appeal. That section requires an operator to comply with “applicable official traffic-control deviceLindsey Nichole Houghton.” Tex. Transp.Code Ann. § 544.004 (West 2011). The video reflects that, although Houghton's vehicle crossed the solid white stripe that marks the right boundary of the left-turn lane, Houghton signaled a lane change, moved her vehicle into the left-turn lane, and waited for an approaching car to clear the intersection before turning left. This case is thus distinguishable from Kortemier v. Texas Department of Public Safety, No. 05–08–01182–CV, 2009 WL 1959256, at *3 (Tex.App.-Dallas July 9, 2009, no pet.) (mem.op.), in which the court observed that the defendant violated section 544.004 “by failing to turn right from a right-turn-only lane marked by a solid white stripe.” Here, Houghton signaled her intention to turn and turned left from the left-turn lane. Even assuming that the solid white stripe is “a traffic control device within the meaning of section 544.004, the State cites no authority that defines [its] purpose or what constitutes a failure to comply with [it].” State v. Palmer, No. 02–03–00526–CR, 2005 WL 555281, at *3–4 (Tex.App.-Fort Worth Mar. 10, 2005, pet. dism'd) (mem. op., not designated for publication) (addressing alleged violation of section 544.004 as shown by video evidence and holding no reasonable suspicion of section 544.004 violation by touching tire to a portion of double-white lines). The State has therefore failed to establish that Houghton's crossing the solid white stripe as part of her movement into the left-turn lane provided Officer Epps with reasonable suspicion or probable cause that would have justified his stop of Houghton's vehicle.

Because the video recording does not clearly show that Houghton committed a traffic violation, we next consider whether sufficient specific, articulable facts justified the stop of Houghton's vehicle. The video recording reflects that Officer Epps initiated his in-car recording device at 3:14 a.m. and followed Houghton's vehicle for approximately one minute and forty seconds before turning on his overhead lights. As the recording begins, Officer Epps drove his vehicle forward and turned right onto Cooper Street. Officer Epps accelerated toward Houghton's vehicle and began following her. Forty-two seconds into the recording, the left-side tires of Houghton's vehicle touched the double-yellow center-stripe, but the vehicle moved slowly back to the middle of the left-hand lane; the movement away from the center stripe was not jerky or fast. After another approximately fifteen seconds, Houghton signaled a left-hand turn and moved her vehicle into the separately-marked left-hand turn lane. Houghton's vehicle came to an almost complete stop at the intersection (the light was green) as she waited for an oncoming vehicle to exit the intersection. Her vehicle then turned left onto the cross-street. Officer Epps followed Houghton for another approximately twenty seconds before initiating his overhead lights. Contrary to Officer Epps's testimony, Houghton's vehicle did not obviously weave within its lane, other than when the tires touched the center lane on one occasion.

The facts of this case are similar to two others in which reviewing courts affirmed the trial court's grant of the defendant's motion to suppress. See State v. Hanrahan, No. 10–11–00155–CR, 2012 WL 503658, at *1 (Tex.App.-Waco Feb.15, 2012, no pet.) (mem. op., not designated for publication); State v. Rothrock, No. 03–09–00491–CR, 2010 WL 3064303, at *1 (Tex.App.-Austin Aug.5, 2010, no pet.) (mem. op., not designated for publication). In Rothrock, the officer stopped Rothrock after seeing “Rothrock leaving a bar at 2:30 a.m., accompanied by a large cloud of dust” and observing Rothrock “weave within his lane and briefly cross over the left fog line.” 2010 WL 3064303, at *1. The court noted that the video evidence did not resolve the dispute concerning the alleged traffic violation (impermissibly driving on an improved shoulder) and held that the video therefore did not support a conclusion that the officer had reasonable suspicion of a traffic violation. Id. at *3. The court further held that the State, by pointing to evidence that Rothrock left a bar at 2:30 a.m., caused a cloud of dust as he drove away, weaved within the lane, and briefly crossed the fog line, did not carry its appellate burden of showing that the trial court abused its discretion by granting Rothrock's motion to suppress. Id. at *2.

In Hanrahan, the officer saw Hanrahan driving at 1:00 a.m. and noticed that her vehicle swerved from side to side within its lane before crossing the fog line that marked the improved shoulder. 2012 WL 503658, at *1. The officer testified at the suppression hearing that crossing the fog line was a traffic violation. Id. Affirming the trial court's grant of Hanrahan's motion to suppress, the court stated that the officer was unable to clearly explain how Hanrahan crossed the fog line and that the video “failed to clearly show a [traffic] violation.” Id. at *5. The court then stated,

While in some instances an officer's observation of a violation of the transportation code unequivocally establishes a violation of the law justifying a traffic stop, in this case, the trial court was able to not only consider the testimony of Officer Bell, but it also was able to consider the video recording of the incident. And in granting appellee's motion to suppress, the trial court clearly did not believe the testimony of Officer Bell, and it did not believe that the videotape conclusively demonstrated a violation of the transportation code. Essentially, the determination of whether Officer Bell had reasonable suspicion to stop appellee turned on the trial court's evaluation of Officer Bell's credibility and an evaluation of the video recording within the context of Officer Bell's testimony. In such instances, we afford “almost total deference” to the trial court's conclusions. Furthermore, because the trial court entered fact findings stating that it did not believe that a traffic violation occurred, we must review the fact findings in a light most favorable to the trial court's ruling.

Id. (citations omitted).

Applying the appropriate standard of review and giving almost total deference to the trial court's factual determinations where appropriate, we hold that the State has not demonstrated that the trial court erred by granting Houghton's motion to suppress. The record, viewed in the light most favorable to the trial court's ruling, does not reflect sufficient specific, articulable facts that when combined with rational inferences from those facts, would have led Officer Epps to reasonably conclude that Houghton was, had been, or soon would be engaged in criminal activity. We therefore overrule the State's first and second points.7

VI. Conclusion

Having overruled each of the State's points, we affirm the trial court's order.

ANNE GARDNER, Justice.

LIVINGSTON, C.J., concurs without opinion.
Pedigree

Citations

  1. [S654] Electronic Web Site, , http://caselaw.findlaw.com/tx-court-of-appeals/1614735.html

Kenneth Mearle Houghton1

M, #107469

Biography

Corresponded with authorN
A Contributor to Houghton Surname ProjectN
Research1988OR, USA, State v. Houghton, 754 P.2d 13 (Or. Ct. App. 1988)
Court of Appeals of Oregon

Date Filed: May 11th, 1988

Status: Precedential

Citations: 754 P.2d 13

Docket Number: 86-990 CA A45005

Judges: Buttler, P.J., and Warren and Rossman

Fingerprint: 1f697fffc7089acd9fba02ff89a63a0a40366578

754 P.2d 13 (1988)
91 Or.App. 71
STATE of Oregon, Respondent,
v.
Kenneth Mearle HOUGHTON, Appellant.
86-990; CA A45005.

Court of Appeals of Oregon.
Argued and Submitted February 29, 1988.
Decided May 11, 1988.

J. Marvin Kuhn, Chief Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem.

Janet A. Klapstein, Asst. Atty. Gen., Salem, argued the cause for respondent. With her on the brief were Dave Frohnmayer, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.

Before BUTTLER, P.J., and WARREN and ROSSMAN, JJ.

WARREN, Judge.

Defendant appeals his conviction of being an ex-convict in possession of a firearm. ORS 166.270. At issue is whether defendant's detention and frisk were lawful.

On November 15, 1986, at about 3:20 p.m., Officer Carpenter was on patrol near Carver. He saw a woman in a car parked on the side of the road. Later, he saw a man walking in the direction of the car. Around a curve, the officer noticed two other persons in a car parked on the side of *14 the road. He remembered that, a week earlier, he had stopped that car and arrested its driver for driving while suspended. He also recognized the driver and decided to arrest him again. The officer questioned him and learned that he had picked up defendant, who had been hitchhiking, and that the car had broken down. The officer then asked defendant, who was sitting in the front passenger seat, for identification. He testified that he wanted to know whether defendant could drive the car, if the arrested driver wanted to release it to him. Defendant presented the officer with a valid Oregon identification card. When the officer said that he would run a MVD check, defendant responded that there was no need to do so, because he had no driver's license. Because of that statement and because of defendant's nervous appearance and the odd posture in which he was sitting, the officer concluded that defendant had something to hide and ran the check anyway. The check showed that he had been convicted of robbery in the first degree in 1980. The officer ordered defendant out of the car. He started to get out by the passenger door, but the officer told him to come out on the driver's side. Defendant placed his feet up on the seat and scooted out the driver's side. The officer became suspicious that defendant might have a hidden weapon. He frisked him and found a loaded revolver tucked in his belt.

Before trial, defendant moved to suppress the seized gun as well as the statements that he had made after discovery of the weapon. The trial judge denied the motion and found defendant guilty of the charged crime in the subsequent trial to the court. Defendant asserts that the detention and frisk were unreasonable, because the officer had no grounds to believe that defendant had committed a crime or that he was armed and dangerous. The state argues that the detention was lawful and the frisk was justified to ensure the officer's safety.

There are three general categories of street encounters between police and citizens: (1) an arrest, requiring probable cause; (2) a stop, justified by reasonable suspicion; and (3) mere conversation requiring no justification. State v. Warner, 284 Or. 147, 161, 585 P.2d 681 (1978). A stop occurs when an officer restrains a person's liberty by physical force or a show of authority. State v. Kennedy, 290 Or. 493, 498, 624 P.2d 99 (1981); State v. Warner, supra, 284 Or. at 162, 585 P.2d 681. To be lawful, a stop must be justified by a reasonable suspicion of criminal activity and is limited to making a reasonable inquiry. ORS 131.615(1). Mere conversation gives an officer no right to exercise any official authority. State v. Messer, 71 Or. App. 506, 510, 692 P.2d 713 (1984).

Even if we assume that the officer was justified in his initial inquiry as to defendant's identity and his ability to drive, the end of that inquiry came when defendant produced a valid identification card and responded that he had no driver's license. At that point there were no articulable facts from which the officer could reasonably suspect that defendant had committed a crime. The crime for which the driver was arrested did not relate in any way to defendant. No crime had been reported in the area, and there was no indication of any criminal activity on the part of the woman in the parked car or the man walking on the road. There was no apparent relationship between them and defendant. Defendant's nervousness and the fact that he seemed to be sitting at an odd angle did not justify a reasonable belief that he had committed a crime.

The officer supposedly only became concerned when he conducted a record check and found defendant's previous conviction. The fact that a MVD records check disclosed that defendant had been convicted of a robbery about five years before did not justify a belief that he was then engaged in criminal activity or was armed and presently dangerous. The state contends that ORS 131.625,[1] which *15 permits the frisk of a stopped person, justified this frisk. That argument, however, fails, because there had been no lawful stop of defendant. A stop occurred no later than when defendant was asked to step out of the car. Before a frisk may be conducted under ORS 131.625, there must have been a lawful stop under ORS 131.615. For the same reason, the state cannot rely on State v. Bates, 304 Or. 519, 747 P.2d 991 (1987), which is limited to lawful encounters.[2] Here, the officer acted on no more than intuition. Intuition or instinct, even of an experienced officer, cannot amount to reasonable suspicion. State v. Valdez, 277 Or. 621, 628, 561 P.2d 1006 (1977); State v. Butkovich, 87 Or. App. 587, 590, 743 P.2d 752, rev. den. 304 Or. 548, 747 P.2d 999 (1987). The evidence and defendant's statements were obtained as a result of an unlawful stop and should have been suppressed.

Reversed and remanded for a new trial.

ROSSMAN, Judge, dissenting.

I dissent. The majority opinion is inconsistent with controlling precedent and common sense. In State v. Bates, 304 Or. 519, 524, 747 P.2d 991 (1987), the Supreme Court said:

"Article I, section 9, of the Oregon Constitution does not forbid an officer to take reasonable steps to protect himself or others if, during the course of a lawful encounter with a citizen, the officer develops a reasonable suspicion, based on specific and articulable facts, that the citizen might pose an immediate threat of serious physical injury to the officer or to others then present." (Emphasis supplied.)

Under Bates, we must follow a simple two step inquiry: first, was the encounter lawful; and, second, was the frisk based on specific and articulable facts that defendant might pose an immediate threat of serious physical injury to the officer or others.

First, the majority's unsupported assertion that the encounter here was not lawful is incorrect. Like many cases arising from a stop of an automobile, defendant was at the least lawfully detained as a passenger in a vehicle lawfully stopped. State v. Bowen, 88 Or. App. 584, 588, 746 P.2d 249 (1987), rev. den. 305 Or. 45, 749 P.2d 1182 (1988).

Second, the officer's suspicion that defendant was armed was justified. At the time of the frisk, the officer knew that defendant had been convicted of armed robbery and had been released from prison three weeks before. The driver had stated that defendant was a hitchiker, but he had remained in a vehicle which was supposedly disabled. Defendant was sitting at an odd angle and appeared nervous. When asked to leave the car, he did so in such a way as to keep his back to the officer, by putting his feet up on the seat and sliding forward instead of sliding sideways with his feet on the floor. The officer testified:

"[N]ormally in my experience when somebody has to come out of the car from the passenger side to the driver's door, normally you would scoot across the seat and go out the door. But in this case [defendant] started to scoot and lifted his feet up on the seat toward me that way which I really thought was suspicious at that time. "* * *

"I really became suspicious why he was scooting across the seat that way. "* * *

"Well, I suspected that he might have a weapon on him and also if he did, my first suspicion would be that if he did, it would probably be in the side of his pants or in the middle of his back."

In the words of the trial court,

*16 "I think when you take all of these facts into consideration, gentlemen, you have to conclude that Deputy Carpenter was obligated to search this man. I think if he hadn't, he would have been derelict in his duties."

As the Supreme Court stated in State v. Bates, supra:

"[I]t is not our function to uncharitably second-guess an officer's judgment. A police officer in the field frequently must make life-or-death decisions in a matter of seconds. There may be little or no time in which to weigh the magnitude of a potential safety risk against the intrusiveness of protective measures. An officer must be allowed considerable latitude to take safety precautions in such situations. Our inquiry therefore is limited to whether the precautions taken were reasonable under the circumstances as they reasonably appeared at the time the decision was made." 304 Or. at 524, 747 P.2d 991.

The majority would require something more to justify a reasonable suspicion that defendant was carrying a gun. As the events in this case developed, something more could have been an attempt by defendant to pull out his gun. The law does not, and should not, require police officers to be sitting ducks, at the mercy of lawfully detained persons who are armed.
NOTES

[1] ORS 131.625 provides:

"(1) A peace officer may frisk a stopped person for dangerous or deadly weapons if the officer reasonably suspects that the person is armed and presently dangerous to the officer or other person present.

"(2) If, in the course of the frisk, the peace officer feels an object which the peace officer reasonably suspects is a dangerous or deadly weapon, the peace officer may take such action as is reasonably necessary to take possession of the weapon."

[2] In State v. Bates, 304 Or. 519, 747 P.2d 991 (1987), the Supreme Court held that an officer may take reasonable steps to protect himself or others if, during a lawful encounter with a citizen, the officer develops a reasonable suspicion that the citizen might pose a threat to the safety of the officer or others.
Black Sheep1988Defendant appeals his conviction of being an ex-convict in possession of a firearm.
Pedigree

Citations

  1. [S654] Electronic Web Site, , https://www.courtlistener.com/orctapp/71qV/state-v-houghton/…

Sid Houghton1

M, #107470

Biography

Corresponded with authorN
A Contributor to Houghton Surname ProjectN
ResearchFeb, 1954SD, USA, State v. Houghton, 62 N.W.2d 342 (S.D. 1954)
South Dakota Supreme Court

Date Filed: February 3rd, 1954

Status: Precedential

Citations: 62 N.W.2d 342

Docket Number: 9342-a

Judges: Sickel

Fingerprint: 9586a4256f3b2bce1a95a5839a965dbbf7be8f8b

62 N.W.2d 342 (1954)
STATE
v.
HOUGHTON.
No. 9342-a.

Supreme Court of South Dakota.
February 3, 1954.

Ralph A. Dunham, Atty. Gen., E. D. Barron and Walter Mueller, Asst. Attys. Gen., for plaintiff and respondent.

Parker & Parker, Deadwood, for defendant and appellant.

SICKEL, Judge.

The information filed in the circuit court charges Sid Houghton, defendant, with receiving personal property that had been stolen from another, knowing it to have been stolen, contrary to the provisions of SDC 13.3813. The jury found defendant guilty, sentence was imposed, and an application for a new trial was denied. Defendant appealed.

Appellant contends that the evidence is insufficient to prove the defendant's guilt beyond a reasonable doubt, not because the evidence if believed would fail to establish the offense charged, but because the state's witnesses were accomplices of defendant in the commission of the offense with which defendant was charged.

SDC 13.3813 provides that: "Every person who buys or receives in any manner upon any consideration any personal property of any value except as hereinafter provided, that has been stolen from another, knowing the same to have been stolen, is punishable by imprisonment in the State Penitentiary * * *."

The witnesses testifying for the state and upon whose testimony the sufficiency of the evidence depends were Leland Cutler and Eugene Carnes, who stole the property, and Jeanette Carnes, wife of the latter, who was present when it was stolen. Cutler and Carnes were convicted of stealing the property which defendant was charged with receiving from them. This court said in State v. Mosher, 46 S.D. 336, 192 N.W. 756, 757: "In this jurisdiction the crimes of larceny and of receiving stolen property are distinct offenses. Where such is the case, the weight of authority is to the effect that the thief is not an accomplice of the receiver of *343 stolen property." Therefore the corroboration of these witnesses was not necessary under the provisions of SDC 34.3636.

The next contention of appellant is that the state's evidence is circumstantial. Some circumstantial evidence was introduced at the trial but the evidence of the larceny, the receiving of the stolen property by defendant, and the finding of it in defendant's possession was the testimony of eyewitnesses. The question of the credibility of the state's witnesses was therefore one for the jury. State v. Sauter, 48 S.D. 409, 205 N.W. 25, 27.

Judgment affirmed.

All the Judges concur.
Black SheepReceiving stolen property
Pedigree

Citations

  1. [S654] Electronic Web Site, , https://www.courtlistener.com/sd/97xt/state-v-houghton/

William J. Houghton1

M, #107471

Biography

Corresponded with authorN
A Contributor to Houghton Surname ProjectN
Black Sheep1931act of misfeasance and malfeasance while in office
ResearchNov, 1931WA, USA, STATE EX REL. WALTER v. HOUGHTON.
Statement of Case. 165 Wash.

[No. 23282. Department Two. November 13, 1931.]
THE STATE OF WASHINGTON, on the Relation of HARVEY
B. WALTER, Respondent, v. WILLIAM J. HOUGHTON,
as Clerk of Consolidated School District
No. 4, Appellant. «1»

[1] PLEADING (101) - AMENDMENT - LEAVE OF COURT - DISCRETION -
SURPRISE OR PREJUDICE. In mandamus proceeding against an
officer of a municipal corporation, defendant is not
prejudiced by the allowance of an amendment to allege the fact
of incorporation, which was a matter of public record.

[2] OFFICERS (26-1) - RECALL - REVIEW - JUDICIAL QUESTIONS. The
legality of recall proceedings is a judicial question for
determination of the courts.

[3] SAME (26-1) - RECALL - CHARGES - DEFINITENESS AND CERTAINTY.
Recall charges must be set out in language as specific and
definite as the language of a criminal information.

[4] SAME (26-1) - RECALL - GROUNDS - SUFFICIENCY - MISDEMEANOR.
Recall charges against a school director alleging a petty
larceny stated in the language of a criminal information,
and a charge of giving away valuable property rights of the
district, are sufficient for a recall; but a secret
agreement in regard to the appointment of a school
superintendent, dependent upon the result of an election,
is not sufficient, where it merely indicated an intention
to abide by the will of the electors.

Appeal from a judgment of the superior court for
Snohomish county, Bell, J., entered May 14, 1931, in
favor of the relator, in an action to compel the clerk
of a school district to carry out his duties under the
recall statutes, tried to the court. Affirmed, as modified.

Charles A. Turner and Louis A. Merrick, for appellant.

M. H. Forde, for respondent.

«1» Reported in 4 P. 2d 1110.

STATE EX REL. WALTER v. HOUGHTON. 221
Nov. 1931 Opinion Per HOLCOMB J.

HOLCOMB

HOLCOMB, J. - This mandamus action in the lower
court grew out of a recall proceeding whereby the
voters of a consolidated school district in Snohomish
county are attempting to recall two of its directors,
one of whom is appellant and who is also clerk of the
district. Recall charges were formulated and filed
with appellant as clerk of the district, who refused to
furnish a ballot synopsis as provided by law. Thereupon
relator, on behalf of himself and six other electors
selected at a meeting of legal voters of the school
district, petitioned for a mandate to compel appellant to
carry out his duties under the recall statutes. An alternative
writ was issued, against which appellant
moved to strike. certain portions of relator's petition
and demurred separately to all of the recall charges.

On the hearing of the matter by the trial court,
relator was granted permission to amend a paragraph
of his petition by interlineation, adding the words
"which is a municipal corporation, organized and legally
existing under the laws of the state of Washington."
The amendment amended the paragraph alleging
that appellant is now, and at all times hereinafter
mentioned has been, the duly elected, qualified
and acting clerk of consolidated school district No. 4,
Snohomish county, Washington. To this amendment
appellant objected, which objection was overruled.

The petition of relator for the recall contains seven
separate paragraphs of charges of misfeasance, malfeasance
and nonfeasance on the part of the officers
sought to be recalled. The trial court found the first,
fourth, fifth, and the first part of the sixth to be
insufficient under the law as recall charges; and sustained
the second, third, the latter half of the sixth, and all
of the seventh as sufficient under the law as recall
charges.

222 STATE EX REL. WALTER v. HOUGHTON.
Opinion Per HOLCOMB, J. 165 Wash.

With those charges which the court held to be insufficient,
we are no longer concerned.

[1] Appellant maintains that the trial amendment
to the petition of relator should not have been
permitted to allege that consolidated school district No. 4,
Snohomish county, Washington, is a municipal corporation
organized and legally existing under the laws
of this state. The allegation was necessary as a part
of the pleading; but it was of a public matter, which
was, of course, known to appellant, he being an officer
of the public corporation. Appellant could not be surprised
or prejudiced by any such amendment. There
is no merit in this contention.

The charges which the trial court held to be sufficient
as recall charges read:

Paragraph II:

"That on or about August, 1929, the said William. J.
Houghton, without any authorization by the school
board of said school district, and while a director and
clerk thereof, purchased a bill of goods from Deiwert-Swarm
Hardware Company, Everett, Washington, for
said school district, one item thereof being a brace
costing $6.50, all of which goods was delivered to said
William J. Houghton, for said school district and was
paid for out of funds belonging to said school district,
but the said William J. Houghton has never delivered
or otherwise accounted for said brace to said school
district."

and paragraph III:

"Sometime during the months of July or August,
1929, said William J. Houghton, as such school director
and clerk, executed and delivered a right-of-way deed
or permit to the city of Everett, for a one hundred
foot right-of-way through the Glenwood school
grounds belonging to said district, though no action
had been taken by said school district, as such, authorizing
the issuance of such deed or permit and

STATE EX REL. WALTER v. HOUGHTON. 223
Nov. 1931 Opinion Per HOLCOMB, J.

without any definite discussion by said board as to the
value or price to be asked for such right-of-way, and
without any appearance before said school board by
any representative of said city, and no money or other
consideration of value has ever been paid to said school
district for said right-of-way."

and the latter half of paragraph VI, to-wit:

"And further, in that in or about the month of June,
1930, said William J. Houghton as such school director
and clerk, sanctioned the hiring by said school board
of the said F. W. Cushman, while the latter was a fellow
school director, to grade the high school grounds
belonging to said school district, and sanctioned the
payment of said F. W. Cushman for said work out of
funds belonging to said school district, contrary to the
provisions of Sec. 4873 of Rem. Comp. Statutes of Wash." (Should
be SS 4783.)
and paragraph VII:

"That said William J. Houghton, committed a further
act of misfeasance and malfeasance while in office
and violated his oath of office, in that with Martin
Robinett, a fellow school director, he did, immediately
prior to the annual election of said district held on
March 7, 1931, willfully and secretly conspire and
agree, that in the event said F. W. Cushman should be
reelected as director, that they, as school directors,
would refuse to issue a new contract to Oscar Hiaasen,
school superintendent, but that in the event that the
opponent of said Cushman, O. E. Swartzmiller, should
be elected as school director, they would vote to retain
said Hiaasen as school superintendent, and said William
J. Houghton at the meeting of said school board
held on the 9th day of April, 1931, did, in conformity
with said secret agreement, vote to refuse to renew the
contract with said Oscar Hiaasen, solely because said
F. W. Cushman was re-elected as school director of
said district for another term."

[2, 3] As to the remaining contentions of appellant,
this court has decided that the legality of the
proceedings

224 STATE EX REL. WALTER v. HOUGHTON.
Opinion Per HOLCOMB, J. 165 Wash.

for a recall election and whether they comply with
the law, is a judicial question for determination by the
courts, Gibson v. Campbell, 136 Wash. 467, 241 Pac. 21;
and that, under our recall statute, the charges must be
set out in language as specific and definite as the
language of a criminal information. Cudihee v.
Phelps, 76 Wash. 314, 136 Pac. 367. Also, Gibson
Campbell, supra.

[4] There can be no question but that the charge
stated in paragraph two of the petition, held sufficient
by the trial court, although concerning a very petty
matter which would constitute nothing more than petit
larceny, nevertheless states an offense which would
constitute a misdemeanor if stated in the language of
a criminal information at law.

Paragraph three of the petition for recall beyond
any question alleges the giving away of property
or valuable rights by way of easement by appellant as
director and clerk without any right or authority.
Whether or not this would constitute a criminal offense,
is unnecessary here to determine, inasmuch as
the charge is sufficient as a charge of defrauding the
school district of valuable rights or property.

The latter half of paragraph six sustained by the
trial court alleges a transaction which is prohibited
by the section of the statute referred to; and, being
lawful by virtue thereof, is a sufficient charge for
recall.

As to paragraph seven, the court is divided, but the
majority consider that the charge therein constitutes
nothing more than an allegation that appellant indicated
an intention to abide by the will of the electors
as expressed in the vote for school director, and that
this case is not controlled by our decision in Pybus v.
Smith, 80 Wash. 65, 141 Pac. 203, Ann. Cas. 1915A,
1145, L. R. A. 19151 285.

IN RE DORE. 225
Nov. 1931 Statement of Case.

The judgment of the trial court is therefore affirmed
in all things, except as to paragraph seven of the recall
charges.

TOLMAN, C. J., MAIN, MILLARD, and BEALS, JJ.,
concur.1
Pedigree

Citations

  1. [S654] Electronic Web Site, , http://courts.mrsc.org/mc/courts/zwashreports/165WashReport/…

Iris Loree Houghton1

F, #107472, b. 23 October 1914, d. 16 August 2007

Family 1: Gordon Wallace McClung b. 8 Jun 1909, d. 25 Sep 1971

Family 2: Mortimer Frederic Christo

Biography

Corresponded with authorN
A Contributor to Houghton Surname ProjectN
BirthOct 23, 1914Chester, OK, USA, age 16 in 1930 census1
Marriage
1940 Census1940Otter, OK, USA, Living with his father Pinkney L McClung, 60, widower2
MarriageAug 12, 1965Imperial Co., CA, USA3
MarriageNov 17, 1987Clark Co., NV, USA
DeathAug 16, 2007San Dioego Co., CA, USA
Pedigree

Citations

  1. [S1233] 1930 U.S. Federal Census , Seiling, Dewey, Oklahoma; Roll: 1898; Page: 5A; Enumeration District: 0020; Image: 1035.0; FHL microfilm: 2341632.
  2. [S1479] 1940 U.S. Federal Census , Otter, Harper, Oklahoma; Roll: m-t0627-03297; Page: 1B; Enumeration District: 30-14.
  3. [S1369] California Marriage Index, 1960-1985, online Ancestry. Com, State of California. California Marriage Index, 1960-1985. Microfiche. Center for Health Statistics, California Department of Health Services, Sacramento, California.

Avis Larue Houghton1

F, #107473, b. 19 August 1923, d. 11 January 2004

Family: Edward H. Odeleher

Biography

NoteJan 1941: Name listed as AVIS LARUE HOUGHTON; Jan 1942: Name listed as AVIS LARUE BEAN; Jan 1946: Name listed as AVIS CHEATHAM; Jun 1959: Name listed as AVIS LAR WOLFE; May 1963: Name listed as AVIS LARUE BERGMAN; Feb 1965: Name listed as AVIS LAR ODELEHR
Corresponded with authorN
A Contributor to Houghton Surname ProjectN
BirthAug 19, 1923Seiling, OK, USA, age 6 in 1930 census; age 16 in 1940 census1
Marriagebefore 1965
DivorceMar, 1968San Diego Co., CA, USA
DeathJan 11, 2004Imperial Beach, San Diego Co., CA, USA
Pedigree

Citations

  1. [S1233] 1930 U.S. Federal Census , Seiling, Dewey, Oklahoma; Roll: 1898; Page: 5A; Enumeration District: 0020; Image: 1035.0; FHL microfilm: 2341632.

Lois Alberta Houghton1

F, #107474, b. 27 July 1926, d. 10 March 1999

Family: Albert Louis Touron Sr b. 2 Jan 1922, d. 17 Jan 2010

Biography

Corresponded with authorN
A Contributor to Houghton Surname ProjectN
BirthJul 27, 1926Seiling, OK, USA, age 3 in 1930 census; age 13 in 1940 census1
Marriage1948O'Neill
MarriageSep 22, 1951San Francisco, CA, USA
Children+Renee Cafferata, Paulette Sudano, Albert L. Touron Jr. and John K. Touron
DeathMar 10, 1999San Francisco, CA, USA
ObituaryMar 11, 1999TOURON, Alberta Lois (Bertie) Dearly beloved wife of 48 yrs. to Albert Louis Touron; loving mother of Renee Cafferata, Paulette Sudano, Albert L. Touron Jr. and John K. Touron; molher-in-law of Emil Cafferata and Robert Sudano: devoted grandmother of Marcel. Dino and Chantelle afferata. Natalie and Todd Touron and Nicole Sudano; dear sister of Iris Christo and Avis Odelehr of San Diego. A Committal at Holy Cross Cemetery.
BurialHoly Cross Cemetery, Colma, CA, USA
Pedigree

Citations

  1. [S1233] 1930 U.S. Federal Census , Seiling, Dewey, Oklahoma; Roll: 1898; Page: 5A; Enumeration District: 0020; Image: 1035.0; FHL microfilm: 2341632.

Carole J. A. Houghton1

F, #107475, b. circa 1939

Biography

Corresponded with authorN
A Contributor to Houghton Surname ProjectN
Birthcirca 1939NM, USA, age 10/12 in 1940 census1
Living1977
Duplicate
Pedigree

Citations

  1. [S1233] 1930 U.S. Federal Census , Seiling, Dewey, Oklahoma; Roll: 1898; Page: 5A; Enumeration District: 0020; Image: 1035.0; FHL microfilm: 2341632.

Wyatt Douglas de Ramais1

M, #107476, b. 22 January 1905, d. 10 June 1993

Family: Nadine Houghton b. 5 Aug 1918, d. 28 Feb 1984

Biography

A Contributor to Houghton Surname ProjectN
Corresponded with authorN
BirthJan 22, 1905AL, USA
Marriage1
DeathJun 10, 1993Prattville, AL, USA
Pedigree

Citations

  1. [S1233] 1930 U.S. Federal Census , Seiling, Dewey, Oklahoma; Roll: 1898; Page: 5A; Enumeration District: 0020; Image: 1035.0; FHL microfilm: 2341632.

Catherine (?)1

F, #107481, b. circa 1843

Family: Thomas Houghton b. bt 1835 - 1837, d. Jul 1920

Biography

A Contributor to Houghton Surname ProjectN
Corresponded with authorN
Birthcirca 1843Ireland, age 27 in 1870 census1
Marriage1
Pedigree

Citations

  1. [S1228] 1870 U.S. Federal Census , Donegal, Butler, Pennsylvania; Roll: M593_1315; Page: 200B; Image: 407; Family History Library Film: 552814.

John A. Houghton1

M, #107482, b. circa 1858

Biography

A Contributor to Houghton Surname ProjectN
Corresponded with authorN
Birthcirca 1858PA, USA, age 12 in 1870 census1
Pedigree

Citations

  1. [S1228] 1870 U.S. Federal Census , Donegal, Butler, Pennsylvania; Roll: M593_1315; Page: 200B; Image: 407; Family History Library Film: 552814.

David Houghton1

M, #107483, b. circa 1859

Biography

A Contributor to Houghton Surname ProjectN
Corresponded with authorN
Birthcirca 1859PA, USA, age 11 in 1870 census1
Pedigree

Citations

  1. [S1228] 1870 U.S. Federal Census , Donegal, Butler, Pennsylvania; Roll: M593_1315; Page: 200B; Image: 407; Family History Library Film: 552814.

Mary Houghton1

F, #107484, b. circa 1861

Biography

A Contributor to Houghton Surname ProjectN
Corresponded with authorN
Birthcirca 1861PA, USA, age 9 in 1870 census1
Pedigree

Citations

  1. [S1228] 1870 U.S. Federal Census , Donegal, Butler, Pennsylvania; Roll: M593_1315; Page: 200B; Image: 407; Family History Library Film: 552814.

Cecilia Houghton1

F, #107485, b. circa 1863

Biography

A Contributor to Houghton Surname ProjectN
Corresponded with authorN
Birthcirca 1863PA, USA, age 7 in 1870 census1
Pedigree

Citations

  1. [S1228] 1870 U.S. Federal Census , Donegal, Butler, Pennsylvania; Roll: M593_1315; Page: 200B; Image: 407; Family History Library Film: 552814.

Catherine Houghton1

F, #107486, b. circa 1864

Biography

A Contributor to Houghton Surname ProjectN
Corresponded with authorN
Birthcirca 1864PA, USA, age 4 in 1870 census1
Pedigree

Citations

  1. [S1228] 1870 U.S. Federal Census , Donegal, Butler, Pennsylvania; Roll: M593_1315; Page: 200B; Image: 407; Family History Library Film: 552814.

Martin Houghton1

M, #107487, b. October 1860

Family: Mary Hoffman b. Dec 1869

Biography

Corresponded with authorN
A Contributor to Houghton Surname ProjectN
BirthOct, 1860PA, USA, age 7/12 in 1870 census; Oct 1873, age 27 in 1900 census2
Pedigree

Citations

  1. [S1228] 1870 U.S. Federal Census , Donegal, Butler, Pennsylvania; Roll: M593_1315; Page: 200B; Image: 407; Family History Library Film: 552814.
  2. [S235] U.S. Census, 1900 Soundex, Donegal Twp, Butler Co., PA, Reel 221, Vol. 50, E.D. 70, S. 5, Ln. 65.

Marjorie (?)1

F, #107488, b. circa 1912

Family: Demos Arthur Houghton b. 18 Nov 1910, d. 29 Aug 1975

Biography

A Contributor to Houghton Surname ProjectN
Corresponded with authorN
Birthcirca 1912IA, USA, age 28 in 1940 census1
Marriage1
1940 Census1940Liberty, Marion Co., IA, USA, age 29, coal miner; next door to parents1
Pedigree

Citations

  1. [S1479] 1940 U.S. Federal Census , Liberty, Marion, Iowa; Roll: T627_1181; Page: 1A; Enumeration District: 63-23.

Donna Marlene Houghton1

F, #107489, b. circa 1938

Biography

Corresponded with authorN
A Contributor to Houghton Surname ProjectN
Birthcirca 1938OK, USA, age 2 in 1940 census1
1950 US Census1950Snow Creek, OK, USA, age 55, widowed, farmer
Living1955
Pedigree

Citations

  1. [S1232] 1920 U.S. Federal Census , Nowata, Nowata, Oklahoma; Roll: T627_3315; Page: 23B; Enumeration District: 53-13.

Mosco Vallandingham

M, #107490, b. circa 1906

Family: Virginia E. Houghton b. c 1913, d. 26 Jun 1990

Biography

A Contributor to Houghton Surname ProjectN
Corresponded with authorN
Birthcirca 1906OK, USA, age 34 in 1940 census1
Marriage1
1950 US Census1950Kansas City, MO, USA, age 44, Police Dept, police duty
Pedigree

Citations

  1. [S1479] 1940 U.S. Federal Census , Kansas City, Jackson, Missouri; Roll: T627_2178; Page: 10A; Enumeration District: 116-293.