8 Wash. 523 | Wash. | 1894
The opinion of the court was delivered by
Appellant was tided upon an information filed against him on the 5th day of September, 1893, in the superior court of Thurston county, for the crime of murder in the first degree, committed by killing one J. S.
Appellant has assigned as error a great many rulings of the court, both in the admission and exclusion of testimony, which have not been distinctively and especially argued, either in the brief or in the oral argument. We have, howevei’, regarded them all as contested points and have examined them accordingly, and from such examination, without especially reviewing each assignment, have been unable to find error in any of them. We will now notice particularly the assignments upon which the appellant mainly relies for the reversal of his case.
During the progress of the trial appellant introduced Coroner Hartsock to prove that Conboy, a witness for the state, had made a statement to him the day after the tragedy occurred, concerning the manner in which the shooting was done; which statement was at variance with a material point made by him on the witness stand. The state, in rebuttal, introduced three witnesses, viz., Ragless, Foster and Wilson, who testified that the statement made by Conboy was substantially the same as the statement made by him on the witness stand. The appellant earnestly insists that the admission of this testimony was prejudicial error; that the testimony of a witness cannot be sustained by showing that his testimony corresponds with statements that he had previously made, citing Ellicott v. Pearl, 10 Pet. 412, to sustain this-contention; and while the general
“Where parol proof,” says Justice Story, who rendered the opinion of the court in that case, ‘ • has been offered against the testimony of a witness under oath, in order to impeach his veracity, establishing that he has given a different account at another time, we are of opinion that, in general, evidence is not admissible, in order to confirm his testimony, to prove that at other times he has given the same account as he has under oath; for it is but his mere declaration of the fact; and that is not evidence. His testimony under oath is better evidence than his confirmatory declarations not under oath; and the repetition of his assertions does not carry his credibility further, if so far, as his oath. We say in general, because there are exceptions; but they are of a peculiar nature, not applicable to the circumstances of the present case, as where the testimony is assailed as a fabrication of a recent date, or a complaint recently made; for there, in order to repel such imputation, proof of the antecedent declaration of the party may be admitted.”
The defendent in this case assailed the testimony of Con-boy as a fabrication. That was the object of Hartsock’s testimony, to make it appear to the jury that at first Con-boy had told the truth, but that subsequently he had fabricated the statement which he made under oath. In fact this is the exact theory yet maintained by the appellant, for in his brief he says:
“Now, throwing aside the evidence of both the appellant .and Conboy, as given on the trial, the evidence as given by Hartsock as to what Conboy said immediately after the occurrence, while it was yet fresh in his mind, and before his revengeful feeling could be crystallized into shape, should control.”
‘ ‘ When a witness is assailed on the ground that he narrated the facts differently on former occasions, while on re-examination it is competent for him to give the circumstances under .which the narration was made, it is ordinarily incompetent to sustain him by proof that on other-occasions his statements were in harmony with those made on the trial. On the other hand, where the opposing case is that the witness testified under coiTupt motives, or where the impeaching evidence goes to charge the witness with a l’ecent fabrication of his testimony, it is but proper that such evidence should be x’ebutted.”
See, also, many cases cited to sustain the text.
This, we think, is now the almost universal holding of modern courts, while many courts go further and hold, not of coux’se that a witness can be allowed to manufacture testimony by making a statement in advance and then showing that statement in proof of the correctness of his statement under oath, because it would obviously be no confirmation at all, as testimony under oath is certainly to have more weight than the loose statements made without the solemnity of an oath, hut that such statements are properly admissible as confirmatoxy evidence where the witness’ credit is impeached. Regina v. Megson, 9 Car. & P., p. 418.
In Indiana it seems to be the universal holding that, if a witness be impeached by proof of his having previously made statements inconsistent with his testimony, he may be oox’roborated by evidence of other statements made by him in accordance with his testimony. Clark v. Bond, 29 Ind. 555; Harris v. State, 30 Ind. 131; Brookbank v. State, 55 Ind. 169.
But whatever distinctions the authorities may have made in reference to the admission of this kind of testimony, practically all of them would sanction its admission under
During the cross examination of the appellant he was asked by the attorney for the state if he did not state to the sheriff on the day of McCabe’s funeral that, “if there has been no accident or slip, McCabe was in hell by this time.” This question was objected to as incompetent and immaterial, and the court refused to admit it, on the ground that it was not proper cross examination. The question was then asked for the avowed purpose of laying the ground for impeachment. This was objected to, and the objection was sustained. Appellant’s counsel then desired to note an exception to the asking of any questions of this sort before the jury; whereupon the court made the following statement to the jury:
“The jury will understand that when they retire their verdict must be made up on the evidence that is given, and they are to give no weight to that testimony which is ruled out.”
This statement by the court to the jury, the appellant contends, was not sufficient, but that the court ought to have proceeded to rebuke the attorneys for the state for asking the question. We hardly see how such a procedure
It is contended by the appellant that the testimony does not sustain the verdict; but in the absence of any legal error we do not feel justified in disturbing the verdict of the jury. It is a well established principle that the jury is the tribunal instituted by law to pass upon questions of fact, and where there is a conflict of testimony their verdict will not be disturbed by the courts. This has been the uniform holding of this court and of all other courts; and, in fact, there can be no other holding under the law. This case presents, in its most radical form, a violent conflict of testimony. Defendant Manville and his wife both positively swear that McCabe and Conboy were down at the scene of the tragedy during the afternoon of the day of the shooting and a short time prior to the shooting, relating in detail circumstances that occurred there; while Conboy and Mrs. McCabe both as positively swear, from their personal knowledge and observation, that neither McCabe nor Conboy was down at that part of the farm, or, in fact, away from McCabe’s house until they went
The judgment is, therefore, affirmed.
Stiles, Scott, Anders and Hoyt, JJ., concur.