State v. Demas, 114 Wash. 596

State v. Demas

114 Wash. 596 | Wash. | 1921

Bridges, J.

— The defendant was convicted of a certain crime which the state charged he had committed. From judgment of sentence, he has appealed. By independent testimony, he sought to impeach the testimony of the complaining witness for the state by showing that he had been guilty of immoral acts and conduct, and the court sustained the state’s objections to that character of testimony. In its ruling it said:

“There is only one thing I will permit you to show with reference to the witness (complaining witness) *597and that is his reputation for truth and veracity. Whether he was immoral or moral was not a matter upon which he can he impeached, hut you may simply show his reputation for truth and veracity as affecting his credibility as a witness. . . . Now, it is wholly immaterial to this case whether this boy is immoral or very moral except in so far as it may bear upon his testimony — his credibility as a witness. Now, you cannot bring witnesses to prove he is immoral . . . but whether or not this boy has been guilty of things which made it necessary for the school authorities to chastise him or reprimand him is not an issue in this case, and you cannot show those things even for the purpose of affecting his credibility as a witness, but if you want to impeach his testimony you may show whether or not he is a boy whose word is considered good or bad in the community in which he lives, whether or not he is a truthful or untruthful boy.”

The appellant argues that he was entitled to show the immoral character of the state’s witness, and cites several cases in support of this contention. Among those cited are State v. Jackson, 83 Wash. 514, 145 Pac. 470, and State v. Gaul, 88 Wash. 295, 152 Pac. 1029. This court in those two cases held that independent and separate testimony might be received to show the general moral reputation of a witness for the purpose of affecting his credibility, but we have never gone so far as to hold that occasional or isolated instances of immoral acts might be proven for that purpose. In the case of State v. Jackson, supra, we said:

“We nevertheless believe that the reputation of a witness for immorality may be inquired into, either upon cross-examination or by a resort to general reputation. It is not the manner of proof that concerns the law so much as the object sought to be attained, for, as said by this court in the Goella case, a woman cannot ruthlessly destroy that quality upon which most other good qualities are dependent and for which, above all others, a woman is reverenced and respected, *598and retain her reputation for truthfulness unsmirched. We can mark no distinction between receiving evidence as to the reputation of a witness for truth and veracity and receiving evidence of reputation as to moral character, when this court has said that a reputation for immorality is a thing to be considered when passing upon the credibility of a witness.”

It will be observed that the court in that case limited the proof to reputation for morality or immorality. We have no disposition to enlarge upon the doctrine of that case. But it is stated that we have already broadened the doctrine of the Jackson case, because, speaking of that case in State v. Gaul, supra, we said:

“That case and the cases followed passed upon the question of the admissibility of evidence to show immoral habits or conduct of witnesses, either upon cross-examination or by the direct testimony of other witnesses to affect the credibility of the witnesses assailed, and whether that method of impeachment was as permissible as any other.”

When we used the words “immoral habits or conduct of witnesses,” we were using them in the sense of the reputation of the witness concerning his morality or immorality, and there was no intention of holding or intimating that individual acts of immorality might be shown.

It is said, however,' that the ruling of the trial court upon the objections made was broad enough to deny the appellant the right to introduce independent testimony showing, if he could, the reputation of the state’s witness for immorality. The result of the court’s ruling was entirely right, because the question asked by the appellant sought to bring out individual acts of immorality. At no time did he offer to show the reputation of the state’s witness for morality or immorality. On the contrary, during the progress of his ruling the court asked appellant’s attorney what he proposed *599to prove by tbe witness then on tbe stand, to which the attorney answered that he wanted “to prove that the complaining witness, Milton Draper, had been found in the commission of immoral acts while attending the school under — especially the class of Mr. Duskin, and that he exhibited an immoral character.” The Mr. Duskin mentioned was appellant’s witness then being examined by his attorney. While the court in making its ruling said some things which might tend to indicate that it was of the opinion that appellant could not attack the reputation for morality of the state’s witness, yet it said other things which indicated an entirely different state of mind. In any event, the court was not called upon to rule on this question, nor did appellant intimate that he wanted to introduce any evidence of this character.

The appellant claims error because the court refused his request that the jury be permitted to view the premises where it was alleged the crime was committed. Quite elaborate maps had been made by competent witnesses showing the location and its surroundings, and various witnesses had testified in great detail on the subject. Whether the jury will be permitted to view the premises where a crime is committed or accident happens is entirely discretionary with the trial court. In this instance, we cannot hold that the court abused its discretion. On the contrary, there is nothing in the record to indicate that there was any considerable necessity for the jury to see the premises or that the appellant could have, in any wise, been prejudiced by the decision of the court. From the maps and the witnesses, the jury could easily acquire an intimate and accurate knowledge of the place and its surroundings.

One Wilson, a witness for the state, testified, over the objections of the appellant, that he was one of the *600peace officers of King county, and had arrested the appellant for the crime for which he was tried. He further testified to a conversation between himself and the appellant wherein the latter had admitted to him that he had seen Milton Draper, the complaining witness, on the day in question and at the place where the crime is alleged to have been committed. The appellant objected to this testimony and requested the court to give the following instruction concerning it, to wit:

“The evidence of the witness Wilson that the defendant made admissions that he had seen the complaining witness, Milton Draper, in the vicinity of the place where this crime is claimed by the state to have occurred, is no evidence that the defendant committed or participated in the commission of the crime charged in the information.”

We think the court ruled properly in permitting this witness to testify and in refusing to give the appellant’s requested instruction. That testimony tended strongly to show that the appellant was at or near the place where the crime was committed, at the time it is alleged to have been committed, and was with or near the complaining witness, and it also tended to corroborate the testimony of that witness.

The appellant also complains about the court’s instruction No. 3, reading as follows:

“You are instructed that it is wholly immaterial what the moral character of the complaining witness, Milton Draper, was, or is, so far as the guilt or innocence of the defendant is concerned, and the only purpose for which you should consider any testimony bearing on the character of the said witness, if at all, is in so far as it will affect the weight which you will give to his testimony. ’ ’

This instruction properly stated the law and is not open to criticism.

*601There are one or two other assignments of error which we deem it unnecessary to discuss. We have carefully considered them and do not find any merit in them. The record indicates that the appellant has had a fair trial, and we cannot see any reason why the cause should' he reversed. The judgment is affirmed.

Parker, C. J., Mackintosh, Fullerton, and Holcomb, JJ., concur.