Opinion
No. 183-40945-2.
November 19, 1970.
[1] Criminal Law — Trial — Taking Case From Jury — Sufficiency of Evidence — Waiver. A challenge to the sufficiency of the evidence at the close of the state's case is waived by a defendant who proceeds to present evidence on his own behalf after the denial of his motion. [See 53 Am. Jur., Trial (1st ed. §§ 307, 426).]
Appeal from a judgment of the Superior Court for Pierce County, No. 37455, William F. LeVeque, J., entered March 14, 1969.
George W. Dixon, for appellant (appointed counsel for appeal).
Ronald L. Hendry, Prosecuting Attorney, Joseph D. Mladinov, Special Counsel, and Eugene G. Olson, Chief Criminal Deputy, for respondent.
Affirmed.
Prosecution for violation of the Uniform Narcotic Drug Act. Defendant appeals from a conviction and sentence.
Gerald Lowell Larkins appeals from a conviction for the unlawful sale of narcotics — heroin. He assigns error only to the trial court's denial of his motion to dismiss made at the conclusion of the state's case.
[1] While this assignment of error would usually require consideration on review, it is the rule in this state that a challenge to the sufficiency of the evidence at the close of the plaintiff's case is waived by a defendant who proceeds to present evidence on his own behalf after the denial of this motion. State v. Wilson, 74 Wn.2d 243, 444 P.2d 141 (1968) and cases cited therein; see also P. Trautman, Motions Testing The Sufficiency of Evidence, 42 WASH. L. Rev. 787 (1967). The record indicates that the defendant did offer evidence on his own behalf after the denial of this motion; it does not indicate that he renewed this motion at the close of his case. In view of this record and the rule cited, we hold the motion to dismiss was waived by the defendant.
Affirmed.