State v. Johnson , 192 Wash. 467 ( 1937 )

I cannot follow the majority in holding that the admission of the evidence introduced by the state on rebuttal by way of impeachment constitutes reversible error. Appellants admitted entering Miss Dewhurst's cottage. They testified that they noticed the front door standing ajar, and entered the house with a view to renting it, if they found it suitable to their needs. They denied having ever before visited the cottage or seeing any of the articles of personal property therein.

This was not collateral to the case against appellants, but, in view of their testimony, it became an important part of the question which was being tried, to-wit, appellants' guilt or innocence of the crime with which they were charged. The state, then, had the right to introduce evidence tending to prove that appellants had testified falsely in the particulars referred to.

The court told the jury that the evidence was admitted only for the purpose of enabling the jury to determine whether or not appellants told the truth when they stated that they were not acquainted with the premises. In my opinion, the state could have proved, as part of its case in chief, that appellants were acquainted with the premises in which they were found, and had seen the articles of personal property therein contained. In any event, in view of the testimony of appellants, the state had the right to show that appellants had not told the truth on such an important and material issue.

I Wharton's Criminal Evidence (11th ed.), § 358, lays down the following rule:

"It sometimes happens in a criminal trial that the case, as made by the prosecution, is not denied by the defense, but the endeavor is made to avoid a conviction by introducing a special or affirmative defense. In replying to such a defense, it may happen that the facts shown by the prosecution in rebuttal discover another crime, and, of course, the same discrimination must be exercised as to its admissibility as if it had been offered to make out the case in chief against the defendant. . .. Another defense frequently raised is accident, or mistake. Now, accident, or mistake, considered with regard to crime, is the exact reverse of intent, the absence of one being indubitable proof of the presence of the other. As a consequence of the nature of this defense, evidence that goes to prove intent on the part of the accused is admissible in rebuttal, notwithstanding the fact that it proves another crime."

Such evidence would be no less admissible under the circumstances disclosed by the record herein.

Later, in § 1365 (vol. 3), we find the following:

"A witness may be contradicted by his inconsistent conduct or acts as well as by his statements. Thus, where a witness testifies to facts, his acts, showing his belief in a different state of facts, may be shown, and he may be cross-examined as to these acts; and where he does not admit the acts, they may be proved to contradict him by other witnesses. . . . Occurrences at which the witness was present may be treated under the same rules as apply to acts."

In my opinion, the evidence received was properly admitted, and the judgments appealed from should be affirmed. I accordingly dissent from the conclusion reached by the majority.