100 Wash. 562 | Wash. | 1918
The appellant, by an information filed in the superior court of King county, was charged with accepting five dollars, on June 15, 1916, the earnings of Mary Medaini, a prostitute. He was convicted and appeals.
In support of the charge, the state introduced testimony tending to establish these facts: Mary Medaini, a coal miner’s widow, with her two small children, moved to Seattle from Ravensdale, Washington, February 5, 1916, and rented a rooming house. This venture proving unprofitable, she gave it up and, with her children, went to live with Mrs. Dilauro on Rainier avenue, with whom appellant was rooming. Thereafter appellant volunteered to find her employment at a lodging house conducted by Mrs. Olson, telling her: “I know lots of girls make lots of money, you nice woman, you make lots of money, too. You talk Italian, French, and I think -you going to make good money there. ’ ’ Later she went to this house, where she practiced prostitution, the appellant coming . to see her frequently and taking her earnings, promised her protection by virtue of his position as special deputy sheriff. On June 15, 1916, while Mary Medaini and her friend Mrs. Jovanelli were in the Columbus restaurant in Seattle, appellant demanded of her five dollars, stating that he wanted it for gambling, which amount she gave him from money earned in the practice’ of prostitution. This is the transaction upon which the information is based.
It is first contended that the evidence is insufficient to sustain the verdict. From what has already been said, it is manifest that there was- competent evidence tending to establish every essential element of the crime. The weight and sufficiency of the evidence was for the jury.
During the course of the trial, Lila Watkins was called by the state as a witness in rebuttal. After showing that she was a bookkeeper in the sheriff’s office and was familiar with the records of that office, she was asked this question: “I will ask you whether or not you have examined the records of your office recently and know from that examination what, if any, moneys were paid to Dominique Lazzaro?” The defendant seasonably objected to the question, and after a lengthy argument in the presence of the jury, the court observed :
The objection was overruled and exception noted, and the witness was permitted to testify that, during the year 1915, appellant had received in the aggregate $199.70, as salary and expenses as deputy sheriff, and that, for the year 1916, to the first of October, he had received the sum of $3. The admission of this testimony is assigned as error. The record discloses that, during his examination in chief, the appellant testified as follows:
‘ ‘ Q. What kind of work did you do under Mr. Hodge ? A. I do whatever work he told me to do. Q. Were you a regular deputy or a special deputy? A. Well, he give me three dollars a day. Q. You didn’t draw pay unless you worked however? A. Yes, that’s right. Q. What is it? A. Yes, I have to work to get pay, sure. Q. You didn’t draw a salary? A. No.”
On cross-examination, the state’s attorney went at length and in detail into the amounts received by ap
But conceding, for the sake of argument, that the rebuttal testimony was competent as tending to affect the credibility of appellant, the court, in the presence of the jury, ruled that it was admissible for a much broader and altogether different purpose .when it said: “This goes to the motive and to the probability of the crime having been committed by this defendant, as to whether or not he had means himself of support or whether he was likely by reason of his own negligence, or his own lack of means and support, to resort to a matter of this sort to raise money. ... I think it would go more than to the credibility of the witness. ” This statement of the court related to the admissibility of evidence showing appellant’s income at a time nine months subsequent to the making of the alleged loan, and more'than three months after the commis
The rule is stated by Professor Wigmore in this language :
‘ ‘ The lack of money by A might be relevant enough to show the probability of A’s desiring to commit a crime in order to obtain money. But the practical result of such a doctrine would be to put a poor person under so much suspicion and at such a relative disadvantage that for reasons of fairness this argument has seldom been countenanced as evidence of the graver crimes, particularly of violence.” 1 Wigmore, Evidence, § 392.
Another author has said:
“Evidence that the defendant had always been poor, or was living extravagantly and beyond his means, or that he was generally reputed to be in good circumstances, or as to the wages he was receiving, either before or after the larceny, is likewise inadmissible.” Underhill, Criminal Evidence (2d ed.), § 304.
The supreme court of Indiana, in Reynolds v. State, 147 Ind. 3, 46 N. E. 31, observes:
“If evidence that appellant was worth $800 in real estate was admissible for the purpose of showing that he had no motive, then it would seem that it would be competent for the state to prove, as showing motive,
The supreme court of Massachusetts in considering this question said:
“It is argued by the defendant that before the law the rich and the poor stand alike, and that the poverty of the defendant is not admissible to show a motive in him to commit the crime with which he is charged. All this may be conceded to be true. As stated by Bigelow, C. J., in Commonwealth v. Jeffries, 7 Allen, 548, 565, 566, ‘It is doubtless true that in a large class of cases the poverty or pecuniary embarrassments of a party accused of crime cannot be shown as substantive evidence of his guilt. The reason for the exclusion of such evidence is, that in those cases there is no certain or known connection between the facts offered to be proved and the conclusion which is sought to be established by it. To render evidence of collateral facts competent, there must be some natural, necessary or logical connection between them and the inference or result which they are designed to establish. It does not follow because a man is destitute that he will steal, or that when embarrassed with debt and incapable of meeting his engagements he will commit forgery.’ Mere poverty considered apart from all other facts
See, also, Snapp v. Commonwealth, 82 Ky. 173; Dorsey v. State, 110 Ala. 38, 20 South. 450; Commonwealth v. Stebbins, 8 Gray (Mass.) 492.
It-must be borne in mind that the appellant is not charged with living off the earnings of a prostitute, but with a specific offense—the acceptance of five dollars on June 15, 1916, earned in the practice of prostitution. His means of livelihood, therefore, was purely collateral to the issue in the case. The rebuttal testimony, in the respect complained of, was clearly inadmissible and highly prejudicial, necessitating a reversal of the case.
In view of the conclusions reached, a discussion of the other assignments of error is unnecessary. The judgment is reversed, and the cause remanded for a new trial.