State v. Pattison , 135 Wash. 392 ( 1925 )

ON REHEARING. [En Banc. December 23, 1925.] Upon rehearing En Banc, this case was argued upon a point not raised in the original briefs. That question arose over the introduction by the state of evidence of certain officers that a witness had made certain statements concerning the ownership of the liquor in question. The Departmental opinion held that the introduction of this evidence was error, but that, through the subsequent testimony in the case, it became competent, and that the error had been cured, or was at most harmless error. Upon rehearing, counsel for appellant strenuously attacks the holding of the court in this particular. It is, therefore, deemed advisable to supplement the reasons controlling that holding, and to cite authorities justifying the conclusion therein reached.

Appellant insists that, because the evidence offered by the state in chief as to statements of the witness Hansen was offered as substantive testimony, it became error which could not thereafter be cured. The authority for this statement is Wigmore on Evidence (2d ed.) p. 189. The text, to our minds, does not support such a construction. It reads:

"Waiver of Objections. . . . Another instance is the curing of an error of admission by the opponent's subsequent use of evidence similar to that already objected to;"

The note appended to this text is as follows:

"But it is otherwise where the subsequent evidence is introduced merely in self-defense to explain or rebut the original evidence;"

citing Chicago City R. Co. v. Uhter, 212 Ill. 174, 72 N.E. 195. An examination of that case shows that the plaintiff, in a personal injury action, offered testimony of witnesses that they had never heard of his having certain disabilities. The defense timely objected thereto, and as part of the defense offered evidence of other witnesses tending to show that they had heard of such disabilities. The court held rightly that the error in the introduction of the original testimony was not waived, because the subsequent evidence was offered only as against that originally produced.

The reason for such a rule is apparent. When one is confronted with improper evidence, he is compelled to meet it in his defense with the same kind; but the rule is entirely otherwise if the evidence offered is not in defense as to the improper testimony, but is offered in defense against the original charge; and then, upon the question of the witness' impeachment, the evidence becomes competent. We have already committed ourselves to this doctrine in State v.MacLeod, 78 Wn. 175, 138 P. 648. In that case, the defendant was charged with manslaughter through attempting to produce an abortion. The state offered evidence in chief regarding his intoxication. It was urged, upon appeal, that this was error, because the evidence was competent only upon rebuttal in the impeachment of the doctor's testimony. This objection was disposed of in the following language:

"It may be admitted, for the purpose of this decision only, that the evidence offered as to intoxication was inadmissible as a part of the state's case. The defendant went upon the stand and testified in his own behalf. In rebuttal, for the purpose of affecting his credibility, the evidence as to intoxication at the times and places mentioned would have been competent. Where offered evidence is not competent at the time admitted, but becomes competent by the development of the trial, the fact that it was admitted irregularly does not constitute reversible error."

The same view was taken by the supreme court of Missouri inState v. Beedle, 180 S.W. (Mo.) 888. In that action, it was urged that the state had improperly offered evidence in chief as to similar crimes when such evidence would only have been proper in rebuttal, after the defendant had offered testimony regarding his intent. The court said:

"While ordinarily the offense of carrying a pistol is not such an offense as to set in motion the rule that the intent with which the act is done may be shown by proof of other crimes of the same kind in the same vicinity and about the same time, yet the peculiar defense relied on in the instant case made the matter of intent an important fact in issue. Indeed, it became the only question in issue, and proof of defendant's actions with this pistol in the same town and shortly before the having of the pistol by the defendant in the barber shop would have been clearly competent in rebuttal. Since it would have been competent in rebuttal, shall we convict the learned trial court of error and reverse this case, because he let this proof casting light upon defendant's intent into the case by the state's evidence in chief rather than in rebuttal? We do not think we should countenance such an ultra refinement of technicality and disallow this contention. We do this the more readily since the learned counsel for defendant before this evidence came in had already said in his opening statement that the defense would be on the sole issue of the intent with which defendant had the pistol, and since, as we state above, this turned out to be the sole defense urged, or shown in the defendant's proof."

While it is apparent from the above decision that one of the motives which induced the trial court to permit this evidence in chief was the statement of defendant's counsel that he was going to show a certain state of facts, yet we think the real reason governing the appellate court's action was that the testimony in view of all the evidence in the case, was competent.

Appellant admits that the offered evidence was proper impeaching evidence; and, if it had been introduced in the state's case in rebuttal, would have been admissible. It may not be amiss to illustrate the practical effect of the situation as presented to the trial court. A reference to the Departmental opinion will show that Hansen was produced as a witness by the defense, not to deny the statements alleged to have been made to the officers, but in behalf of the defendant to explain away the incriminating evidence of the materials used in making the intoxicating liquor, which bore the name of appellant, and which also showed evidence of having been delivered by a common carrier. In doing this, Hansen claimed to be the owner of the materials in question. Upon being asked if he had made statements to the officers that the materials belonged to appellant, he denied the same. If the state, in rebuttal, had attempted to recall the same officers who had testified in chief to prove that he had stated otherwise, the court would not have permitted it, upon the ground that that evidence had already been heard by the jury. If, at the close of all the evidence, appellant had requested the court to strike the testimony of the officers, the court would have been compelled to refuse the motion, because, even though improperly admitted, in the first instance, it was competent evidence in rebuttal, and belonged in the case. If the court could not strike this testimony because clearly competent, then, to hold with appellant on this issue would place us in the position of reversing the action of the trial court because of the order in which the proof was received, the very thing we held in State v. MacLeod,supra, would not be done.

The suggestion that the jury would consider this as substantive testimony is equally untenable, for no request was made by appellant to have the jury instructed to consider it only as a matter of impeachment. If counsel for appellant had requested that the jury be instructed to consider it only as impeaching testimony, and the court refused, a different question would be presented.

Nor does it seem that the introduction of such impeaching testimony in chief prejudiced the appellant in the trial of the action, or took away from him the manner of presenting his defense. It may be conceded that the courts will not permit an intentional disregard of the usual and customary method of procedure as to the time when evidence shall be produced in a case; and, if the record evidenced an intention on the part of the prosecutor or the court to take any advantage of the defendant, we should not hesitate to interfere; but the record shows that both the prosecutor and the trial court were of the opinion that this was proper evidence at the time of its reception. It clearly appears that it was competent at the close of appellant's case, and that no prejudice could possibly have resulted.

The judgment of the trial court is right and it is affirmed.

TOLMAN, C.J., HOLCOMB, MAIN, and MITCHELL, JJ., concur.