State v. Lew , 26 Wash. 2d 394 ( 1946 )

I agree with the majority that the matters referred to by the prosecuting attorney in his opening statement should have been admitted in evidence. Any testimony which is relevant and which will assist the jury in determining either the guilt or the innocence of a defendant, should be admitted, even though such evidence may be as to the commission of a separate and distinct offense. But I cannot agree with the majority as to the giving of instructions Nos. 7 1/2 and 17. The latter instruction correctly stated the law as follows:

"Voluntary admissions, if any, made by a defendant charged with crime . . . are to be considered by the jury in connection with all the other evidence in the case in determining the guilt or innocence of the accused."

The evidence relied upon by the prosecution to warrant this instruction consisted of the following:

The written partnership authority for the China Pheasant; the retaking of a roulette wheel by the defendant during a raid in August, 1944; the purchase of light fixtures for the China Pheasant; the erection of a gambling room as an addition to the building; that the defendant hired an advertising manager; that he hired a cashier; that, at the time of the raid, the officers saw a fountain pen set bearing the inscription "Harry Lew" on a desk in a private office. All of this testimony was admissible to prove ownership, but these matters had occurred long prior to the offenses alleged by the state. They were not voluntary admissions made by the defendant. In instructions of this character, the words "admissions" and "confessions" are used interchangeably, and such use can only be warranted where there is evidence that, at the time or subsequent to the commission of the offense, the defendant made voluntary admissions which would connect him with the crime. The record in this case fails to show any such testimony.

In State v. Rader, 118 Wash. 198, 203 P. 68, we held that, where there were other errors occurring during the trial, it was prejudicial error to give a similar instruction when there was no evidence to support it.

As to instruction No. 7 1/2, it was the duty of the state to convince the jury, beyond a reasonable doubt, of all of the elements of the offenses charged. One element was ownership at the times charged in the information. The defendant was entitled to a presumption of innocence throughout the trial. This instruction took that presumption from him. We should not speculate as to what influenced the jury in arriving at its verdict. I believe that the defendant should be granted a new trial.

December 23, 1946. Petition for rehearing denied.