State v. Stevick , 23 Wash. 2d 420 ( 1945 )

I do not agree with the reasons given for the reversal of the judgment. The only question objected to, and hence the only one to be considered, was: "When you were in Vancouver, B.C., on June 25, 1924, were you not convicted there, charged with working in a house of prostitution and charged with vagrancy, and fined twenty-five dollars or thirty days?"

This question was proper. See State v. Brames, 154 Wn. 304,282 P. 48, in which the court said:

"Equally without merit is the assignment that the court erred in permitting the prosecuting attorney to cross-examine the appellants regarding the nature and details of prior convictions."

It quoted with approval State v. Steele, 150 Wn. 466,273 P. 742, as follows:

"Moreover, it is the common knowledge of every one conversant with the criminal statutes that acts are denounced by them as crimes, the conviction of which would have but little, if any, bearing on the weight of the testimony of the person convicted, given in another cause, while there are others of a nature so depraved that a conviction for their violation would be to put the perpetrator beyond the pale of consideration in the minds of all right-thinking people."

Cross-examination as to the nature of the offense is particularly pertinent where the charge is vagrancy, since it includes in its fourteen definitions a very wide range, running all the way from a "person practicing or soliciting prostitution or keeping a house of prostitution" to a "healthy person who solicits alms." See Rem. Rev. Stat., § 2688 [P.P.C. § 118-269].

The rule that a witness may not be cross-examined as to particular acts of misconduct, does not conflict with the rule that he may be cross-examined as to former convictions. If the witness was convicted of a particular act of misconduct, he may be cross-examined as to the nature of the charge upon which he was convicted, because different charges may properly be given different weight in affecting his credibility. Any issue as to guilt is foreclosed by the conviction, and cross-examination as to the evidence that sustained the charge would therefore be improper; but there is no need to confuse this with cross-examination as to the nature of the charge. The rule with regard to particular acts of misconduct applies where there was no conviction for them. However, prostitution is not a particular act of misconduct. It is rather a course of conduct. Thus a witness may not be cross-examined as to a particular act of prostitution, but may be asked if she is a prostitute.

See State v. Coella, 3 Wn. 99, 28 P. 28, to the effect that a witness may be asked on cross-examination, for the purpose of impeaching her credibility, whether she is a prostitute, without regard to conviction thereof, and it is error for the court to sustain an objection thereto, unless the witness claims the privilege of refusing to answer on the ground of incriminating herself.

Notwithstanding the fact that it would have been proper to ask the witness if she was a prostitute, she was not asked that question. She was cross-examined as to the nature of the charge upon which she had admitted conviction on direct examination. Such examination does not "accuse appellant of being a prostitute." It is not misconduct. Timely objections to misconduct of counsel are as essential to an assignment of error based thereon as are objections based on the inadmissibility of evidence. In any event, misconduct of counsel cannot be predicated upon the asking of proper questions; and the cases cited, although not in point, do not negative this.

The state need not prove former convictions by official records because it cross-examines upon the subject. It is not the law that "there is no excuse for asking questions concerning former convictions at random." Rem. Rev. Stat., § 2290 [P.P.C. § 112-69], provides:

"Every person convicted of a crime shall be a competent witness in any civil or criminal proceeding, but his conviction may be proved for the purpose of affecting the weight of his testimony, either by the record thereof, or a copy of such record duly authenticated by the legal custodian thereof, or by other competent evidence, or by his cross-examination, upon which heshall answer any proper question relevant to that inquiry, and the party cross-examining shall not be concluded by his answer thereto." (Italics mine.)

However, I think appellant's third assignment of error is well taken and that the judgment should be reversed and the cause remanded for a new trial.

Negligent homicide by means of a motor vehicle is not a common-law crime. It is made so by statute. As was said in 5 Am.Jur. 924, §§ 787, 788:

"In view of the frequency of tragedies in connection with the operation of motor vehicles, legislation on the subject has been deemed desirable, . . .

"If a person drives his automobile in such a manner as toviolate the laws in respect thereto, and while so doing strikes another and causes his death, he may be prosecuted for murder or manslaughter — in most cases, the latter." (Italics mine.)

Speaking of the general theory concerning crimes predicated upon being committed while one is engaged in the commission of another and separate offense, we have three such in this state that are related to the killing of a human being. Rem. Rev. Stat., § 2392 [P.P.C. § 117-5], defines first-degree murder. In paragraph (3) it provides:

"Without design to effect death, by a person engaged in the commission of, or in an attempt to commit, or in withdrawing from the scene of, a robbery, rape, burglary, larceny or arson in the first degree;"

Rem. Rev. Stat., § 2393 [P.P.C. § 117-7], defines second-degree murder and in paragraph (2) thereof, it provides:

"When perpetrated by a person engaged in the commission of, or in an attempt to commit, or in withdrawing from the scene of, afelony other than those enumerated in section 2392." (Italics mine.)

Rem. Rev. Stat., Vol. 7A, § 6360-120 [P.P.C. § 295-93], provides in part as follows:

"When the death of any person shall ensue within one year as a proximate result of injury received by the operation of any vehicle by any person while under the influence of or affected by intoxicating liquor or narcotic drugs or by the operation of any vehicle in a reckless manner or with disregard for the safety of others, the person so operating such vehicle shall be guilty of negligent homicide by means of a motor vehicle." (Italics mine.)

In State v. Diebold, 152 Wn. 68, 277 P. 394, the defendant was charged with second-degree murder for the killing of a human being by an automobile while engaged in feloniously taking the automobile and withdrawing from the scene thereof. In reversing the judgment, this court held that the evidence showed that, at the time of the killing, the defendant was returning the automobile to its owner and hence was not engaged in taking it or in withdrawing from the scene. The court said:

"As to when a homicide may be said to have been committed in the course of the perpetration of another crime, the rule is laid down in 13 R.C.L. 845, as follows:

"`It may be stated generally that a homicide is committed in the perpetration of another crime, when the accused, intending to commit some crime other than the homicide, is engaged in the performance of any one of the acts which such intent requires for its full execution, and, while so engaged, and within the resgestae of the intended crime, and in consequence thereof, the killing results. . . .'

"The question before us is not whether appellant was guilty of any crime, but whether or not the evidence supports the verdict of guilty of a particular crime, to wit, that of murder in the second degree.

"We are compelled to hold that appellant was charged under the wrong section of the statute, and that the testimony does not support the verdict of guilty of murder in the second degree."

It therefore appears that, if the defendant is not shown to have been engaged in the commission of the other offense when the killing occurred, the requirements of the statute are not satisfied.

In State v. Barton, 5 Wn.2d 234, 105 P.2d 63, the defendant had been acquitted of murder in the first degree and was later convicted of the identical robbery during the commission of which he had been charged with having committed the first-degree murder. His conviction for robbery was sustained against his plea of res judicata and former jeopardy. The court said:

"The victim of the robbery need not be the same person as the victim of the homicide, and the robbery may be committed in one jurisdiction and the killing take place in another, the only connection between them being the circumstance of the defendant's flight from the place of the one to the scene of the other. SeeState v. Ryan, 192 Wn. 160, 73 P.2d 735. The robbery is not necessarily directly included as an integral part of the murder, but is only incidentally related thereto.

"In State v. Ryan, supra, the defendant was charged with murder in the first degree while engaged `in the commission of a larceny and while engaged in withdrawing from the scene of a robbery and a burglary,' and this court, holding that it was not necessary to set out in the information the facts in connection with the commission of the related felonies, said:

"`As to the information, the appellant says that it is defective because it did not set out therein the elements of larceny, robbery and burglary. But this was not necessary. The charge of withdrawing from the scene of a robbery and burglary was incidental to the primary charge of murder in the first degree, and such incidental matters need not be set out.'"

Thus it appears that the crime during the commission of which the killing occurred is a separate offense and only related incidentally to the homicide and need not be alleged otherwise in the information. This latter is confirmed in State v. Dickert, 194 Wn. 629, 79 P.2d 328, where, in passing upon the demurrer to the sufficiency of the information, the court said:

"The principal question presented upon the appeal, as it appears to us, is whether the second count of the information charged a crime. That count was based upon § 120 of chapter 189, Laws of 1937, p. 911, which is one of the sections of the motor vehicle act. . . .

"The appellant says that § 118, p. 910, of the same act should be read and applied in connection with § 120. In § 118, reckless driving is defined as follows:

"`It shall be unlawful for any person to operate a motor vehicle in a reckless manner over and along the public highways of this state. For the purpose of this section to "operate in a reckless manner" shall be construed to mean the operation of a vehicle upon the public highways of this state in such a manner as to indicate either a willful or wanton disregard for the safety of persons or property.' Rem. Rev. Stat., Vol. 7A, § 6360-118 [P.C. § 2696-876]."

Under the theory of this type of crime, the state is not required to prove intent or negligence, and though the facts show neither, the killing while engaged in the other specified offenses, suffices. Thus the killing of a human being by an automobile properly driven, would nevertheless constitute negligent homicide by means of a motor vehicle if the driver was intoxicated, and contributory negligence or lack of negligence as the proximate cause would not be a defense. The case is otherwise, and negligence must be shown, when manslaughter is alleged under Rem. Rev. Stat., § 2390, as in the case of Statev. Hedges, 8 Wn.2d 652, 113 P.2d 530, where the defendant had shot and killed a human being while hunting deer. The court said:

"After careful consideration, we are convinced that the statute referred to does not require a finding by the jury that the accused was guilty of gross negligence, before a conviction may be had. Under this statute, a finding that an accused was guilty of ordinary negligence supports a conviction. If it be desirable that the law be amended by requiring a finding of gross negligence, that matter is within the province of the legislature."

Thus the legislature in enacting Rem. Rev. Stat., Vol. 7A, § 6360-120, defined a new offense not included under Rem. Rev. Stat., § 2390 [P.P.C. § 117-1], which requires proof of negligence. It defined one that required no proof of negligence at all provided the state can prove that the offense of drunken or reckless driving was incidental to it.

This being the case, the rules of proximate cause and negligence governing tort actions are not applicable in criminal actions brought under the statute here involved. When the state can show negligence as the proximate cause of the death, but cannot show drunken or reckless driving, Rem. Rev. Stat., § 2390, will sustain its charge of manslaughter if brought thereunder. When the state can prove drunken or reckless driving even though they are not the proximate cause of the killing, it can sustain its charge if brought under Rem. Rev. Stat., Vol. 7A, § 6360-120.

The state has its election as to which statute it desires to inform under, but the existence of this election does not give the state the right to allege an offense under one statute and sustain a conviction upon proof of the other. In this case, the state elected to bring the information under Rem. Rev. Stat., Vol. 7A, § 6360-120. It was required to prove that death ensued within a year as the proximate result of an injury which occurred while the defendant was driving in a reckless manner.

Because some acts may constitute both reckless driving and negligence, it does not follow that the terms are synonymous and interchangeable. The court's instruction defined operation in a negligent manner, but did not give the statutory definition of operating in a reckless manner. Rem. Rev. Stat., Vol. 7A, § 6360-120. It was required to part:

"The offense of operating a vehicle in a negligent manner shall be considered to be a lesser offense than, but included in, the offense of operating a vehicle in a reckless manner, and any person charged with operating a vehicle in a reckless manner may be convicted of the lesser offense of operating a vehicle in a negligent manner. Any person violating the provisions of this section will be guilty of a misdemeanor: Provided, The Director of Licenses shall not revoke any license under this act."

It is clear that, as the state was required to prove operation in a reckless manner, it was error for the court to instruct that operation in a negligent manner, an included and lesser offense, was sufficient.

The state relies upon State v. Hedges, supra, and State v.Dickert, supra. In the Hedges case, the information was brought under Rem. Rev. Stat., § 2390. It is therefore not controlling in this case, which is brought under Rem. Rev. Stat., Vol. 7A, § 6360-120.

The Dickert case is in point, but it was decided prior to the enactment of Rem. Rev. Stat., Vol. 7A (Sup.), § 6360-118 1/2, quoted above. At that time there was no distinction between reckless and negligent driving. Its principal concern was the sufficiency of the information. With its holding on that point, I am in accord. If it be thought to be in conflict with the principles I have discussed, I am in favor of overruling it to that extent.

The judgment should be reversed and the cause remanded for a new trial.

September 14, 1945. Petition for rehearing denied.