State v. Smith , 189 Wash. 422 ( 1937 )

Appellant was convicted only of a misdemeanor, third degree assault. Of this, he was undoubtedly guilty under his own testimony. The decision by the majority is another miscarriage of justice in this state, wholly unjustified by the facts or the law.

The majority disregard the fact that, at the time counsel for appellant shrewdly moved to get the trial court to erroneously prejudge the manner of leaving the Marine Corps by appellant, the special prosecutor warned the court and opposing counsel that he would not be bound by that ruling, but if counsel examined appellant as to his previous life, the special prosecutor would cross-examine along the same lines. This, the prosecution doubtless had a right to do and was not to be bound by the prejudgment of the trial judge, not knowing what course the direct examination would take or about what the prosecution would be legally entitled to cross-examine.

Counsel for appellant certainly knew of the previous career of appellant. His able strategy was to get the prosecution and the court bound in advance on the matter so that no such questions would be asked. On cross-examination appellant testified that he had been a Canadian Mounted policeman, a special deputy sheriff in King county, Washington, had served in the United States Marine Corps, and had been an inmate of a penitentiary. The special prosecutor merely asked him what was the occasion of his leaving the Marine Corps. Although he himself knew it was coming, before any objection was made by his counsel he answered, "I deserted."

Had counsel for appellant intended to follow up his objection made before the examination, he should have immediately objected to appellant's answering the question before he answered it; or, if appellant answered too quickly, he should have moved to strike the question and answer. Either the objection would have been sustained or the motion to strike granted, as the trial court had previously intimated. Neither was done. That being the state of the record, no error resulted to the prejudice of appellant. That is the effect of our holdings in State v. Humphreys, 118 Wn. 472,203 P. 965, and State v. Brames, 154 Wn. 304,282 P. 48.

The cases cited by the majority, State v. Heaton, 149 Wn. 452,271 P. 89; State v. Tweedy, 165 Wn. 281,5 P.2d 335; and State v. Navone, 186 Wn. 532, 58 P.2d 1208, are not in point, but are wholly inapt. In the Tweedy case, the prosecuting attorney persisted, as this court said, in repeatedly questioning, and finally, after three adverse rulings by the trial court, in getting testimony before the jury that was certainly incompetent and inadmissible.

That certainly is not true here. The only testimony that was admitted before the jury on the matter in question was probably admissible under the direct examination of appellant. It was certainly as much so as in State v. Zerfass, 175 Wn. 420,27 P.2d 708, where a man was on trial for his life, for murder of his wife, and this court, per Main, J., held that it was not error for the trial court to permit the cross-examination and require appellant to answer relative to his relation to another woman who accompanied him to Portland. The court said:

"The appellant having testified that his reason had been dethroned because of the admission of his wife, if she did make such admission, just prior to the shooting, the question of his own misconduct was not a wholly unrelated matter as bearing upon the question of the effect of his wife's admission upon his mental state. The trial court did not err in permitting the cross-examination complained of."

Other cases from this court were there distinguished; among others, State v. Shaw, 75 Wn. 326, 135 P. 20, which had been relied upon by appellant, where, as pointed out in the last opinion, the defendant had not put his character in issue and it was held that it was prejudicial error to receive in evidence as a part of the cross-examination a certificate of his dishonorable discharge from the United States Navy tending to show that the accused had a bad character. But there, the certificate was independent testimony and not something which had come from the lips of the accused as affecting his credibility.

Appellant was convicted of a minor offense and the judgment should be affirmed. I therefore dissent.

BLAKE and GERAGHTY, JJ., concur with HOLCOMB, J.