circumstantial evidence instruction in Washington

1985Although Zukowsky v. Brown, 79 Wn.2d 586 , 488 P.2d 269 (1971) indicates that res ipsa instructions should not be given and that the theory is adequately covered by a circumstantial evidence instruction, it is clear from ZeBarth and Miller, both of which postdate Zukowsky, that plaintiffs were entitled to an instruction setting forth their theory of res ipsa loquitur, and it was error for the court to deny their properly requested instruction.

1985Although Zukowsky v. Brown, 79 Wn.2d 586 , 488 P.2d 269 (1971) indicates that res ipsa instructions should not be given and that the theory is adequately covered by a circumstantial evidence instruction, it is clear from ZeBarth and Miller, both of which postdate Zukowsky, that plaintiffs were entitled to an instruction setting forth their theory of res ipsa loquitur, and it was error for the court to deny their properly requested instruction.

1974State v. Douglas, 71 Wn.2d 303 , 428 P.2d 535 (1967).

1974State v. Douglas, 71 Wn.2d 303 , 428 P.2d 535 (1967).

1974The court in State v. Melrose, 2 Wn.

1973State v. White, 5 Wn.

1973Under these circumstances, I think the trial court should have some discretion, which strict application of the circumstantial evidence rule enunciated in State v. Randecker, 79 Wn.2d 512 , 487 P.2d 1295 (1971) does not allow, to determine whether the "legal" connection of defendant to the locus is sufficiently shown so as to prevent a possible miscarriage of justice.

1973Under these circumstances, I think the trial court should have some discretion, which strict application of the circumstantial evidence rule enunciated in State v. Randecker, 79 Wn.2d 512 , 487 P.2d 1295 (1971) does not allow, to determine whether the "legal" connection of defendant to the locus is sufficiently shown so as to prevent a possible miscarriage of justice.

1973I am in complete agreement with the statement of the Supreme Court in State v. Golladay, supra , citing with approval at page 130 from State v. Weaver, 60 Wn.2d 87, 88 , 371 P.2d 1006 (1962): "While a conviction may be sustained solely on circumstantial evidence, the circumstances proved must be unequivocal and inconsistent with innocence." (Footnote omitted.) For these reasons, and because there was not one shred of evidence, circumstantial or otherwise, which bore directly or indirectly on defendant's control of the premises as distinguished from his occupancy, I would affirm the judgment of

1973I am in complete agreement with the statement of the Supreme Court in State v. Golladay, supra , citing with approval at page 130 from State v. Weaver, 60 Wn.2d 87, 88 , 371 P.2d 1006 (1962): "While a conviction may be sustained solely on circumstantial evidence, the circumstances proved must be unequivocal and inconsistent with innocence." (Footnote omitted.) For these reasons, and because there was not one shred of evidence, circumstantial or otherwise, which bore directly or indirectly on defendant's control of the premises as distinguished from his occupancy, I would affirm the judgment of

1972Ogilvie v. Hong, 175 Wash. 209, 211 , 27 P.2d 141 (1933). [3] We find no constitutional right violated by the failure to give a circumstantial evidence instruction and even if a proper instruction on circumstantial evidence had been requested and given, we would not have found error in the submission of the issue to the jury.

1972Ogilvie v. Hong, 175 Wash. 209, 211 , 27 P.2d 141 (1933). [3] We find no constitutional right violated by the failure to give a circumstantial evidence instruction and even if a proper instruction on circumstantial evidence had been requested and given, we would not have found error in the submission of the issue to the jury.

1971App. 868, 471 P.2d 115 (1970) the conviction of the appellant was affirmed despite the use of the word “may” rather than the word “must” in a circumstantial evidence instruction.

1971In State v. Redden, 71 Wn.2d 147 , 426 P.2d 854 (1967), the limited use of the word “should” rather than the word “must” in a circumstantial evidence instruction was allowed.

1971In State v. Redden, 71 Wn.2d 147 , 426 P.2d 854 (1967), the limited use of the word “should” rather than the word “must” in a circumstantial evidence instruction was allowed.