State v. Adamo

• Decision Date: 18 May 1922
• Docket Number: 17019.
• Court: Washington Supreme Court
• Parties: STATE v. ADAMO.

207 P. 7

120 Wash. 268

STATE v. ADAMO.

No. 17019.

Supreme Court of Washington

May 18, 1922

Department 1.

Appeal from Superior Court, Spokane County; Jos. B. Lindsley, Judge.

Luigi Adamo was convicted to homicide, and he appeals. Reversed and remanded, with instructions.

Corkery & Corkery, of Spokane, for appellant.

William C. Meyer and E. E. Alley, both of Spokane, for the State.

BRIDGES J.

The defendant was convicted of the crime of killing one Joseph Gracio, and has appealed to this court for redress.

It is not necessary here to go into any of the details of the killing, except to say that it was done on or about the 4th day of August, 1921.

1. The appellant offered to prove by one of his witnesses that about the middle of 1916 the deceased, in a quarrel with the witness, made a movement to his hip as if to draw a gun and made threats of violence against the witness, and that such facts were related to the appellant and were known to him prior to the commission of the offense with which he is here charged. The court refused this offer. Generally speaking, we have no doubt that a defendant charged with homicide may show by third persons that they had previously had quarrels with the deceased, and show the conduct of the deceased on those occasions, if such prior occurrence or occurrences were made known to the defendant before the commission of the crime for which he is being tried, because such testimony tends to show the state of mind of the defendant at the time of the killing, and to indicate whether he at that time had reason to fear bodily harm. State v. Ackles, 8 Wash. 462, 36 P. 597; State v Churchill, 52 Wash. 210, 100 P. 309; 21 Cyc. 961; Sneed v. Territory, 16 Okl. 641, 86 P. 70, 8 Ann Cas. 354.

It does not follow, however, that the court erred in refusing to receive the testimony offered here. The occurrence connected with the offer happened five years before the commission of the offense charged, and we must hold that it is too remote. State v. Farris, 26 Wash. 205, 66 P. 412; State v. Palmer, 104 Wash. 396, 176 P. 547. We do not find any error in the court's ruling.

2. The appellant sought to show by his witness Aranaldi that some time in 1918 the deceased used violent and insulting words to the witness, and accompanied the words with a movement towards his hip, and threatened to shoot the witness. This offer was refused by the court. It is not necessary to determine whether this offer concerned an occurrence which was too remote. In our opinion, the court's ruling was correct because the offer did not show that the facts concerning this 1918 assault were conveyed to the appellant, or that he knew of them, before the time of the commission of the crime charged. When a defendant seeks to excuse the killing on the ground of self-defense, it is competent for him to show the general reputation and character of the deceased for a quarrelsome disposition. The character of the deceased may be shown whether the defendant knew of it or not, because such testimony has a tendency to support the defendant's contention that the deceased was the aggressor. 21 Cyc. 961; People v. Farrell, 137 Mich. 127, 100 N.W. 264; 13 R. C. L. 919. In proving the character of the deceased, specific acts of violence may not be shown. Such is the rule in any kind of case where there is an effort to show character. However, where the person accused is defending, in whole or in part, on the ground that at the time of the homicide he believed, and had good reason to believe, that he was in danger of his life or great bodily harm, he may, in addition to the character evidence, show specific acts of the deceased which are not too remote and of which he had knowledge at the time of the killing with which he is charged. But such acts of the deceased may not be shown unless it appears they were brought to the knowledge of the defendant before he committed the crime charged. See the cases heretofore cited under subdivision 1. 6 Encyc. of Evidence, 761; State v. Roderick, 77 Ohio St. 301, 82 N.E. 1082, 14 L. R. A. (N. S.) 704. It may be conceded that there is a conflict of authority on this last proposition, some courts holding that the specific acts may be shown whether the defendant knew of them or not; but we think we have stated the rule which is in accord with the reason and the weight of authority. The rejection by the court of the offer to prove by Aranaldi was proper because there was no offer to show that the appellant had knowledge of the facts within the offer.

3. The appellant offered to prove by his witness Schacht that he, the defendant, at a time shortly prior to the commission of the offense with which he is charged, told the witness that he carried a revolver and the reasons why he did so. The court properly rejected this testimony. It would have been purely self-serving. Doubtless the appellant should have been permitted to testify why he carried a revolver at the time of the shooting in question, but that would not justify receiving hearsay and self-serving testimony in that question.

4. After the doctor who had made the post mortem examination had testified that one of the bullets had entered the left side of the deceased, he was asked by the state the following question:

'Now, in what position, Doctor, would the deceased's body have to be to receive a wound like that from a gun, with reference to the position of the man who shot the gun?'

Over the objections of the appellant, the witness was allowed to answer as follows:

'He would have to be with his left side towards the man with the gun, his left side, just about in the position that I am to you.'

The authorities are not agreed as to whether a doctor who has examined the wounds may testify as to the relative attitude of the deceased and the instrument or person inflicting the wound. Some of the courts hold that the evidence cannot go farther than to describe the wound, and it is then for the jury to determine from the other testimony the relative positions of the parties. Dial v. State, 159 Ala. 66, 49 South, 230, 133 Am. St. Rep. 19; Dumas v. State, 159 Ala. 42, 49 So. 224, 133 Am. St. Rep. 17; People v. Westlake, 62 Cal. 303; Price v. United States, 2 Okl. Cr. 449, 101 P. 1036, 139 Am. St. Rep. 930. The general attitude of these cases is shown by that of People v. Westlake, supra. There the doctor performing a post mortem examination was asked to state, from the examinations he had made, whether the deceased, if standing or moving in a certain direction, would have received the pistol wound by a person firing from a given spot. The court said:

'Whether the wounds of which the deceased died could have been inflicted by a pistol shot fired by the defendant from a certain direction was a fact to be found by the jury from the evidence of the circumstances in which the homicide was committed, or to be inferred from the relative position of the parties at the time the shot was fired; it was not such a matter of science or skill as required the opinion of an expert.'

The following are some of the cases which hold to the contrary doctrine: Hopt v. Utah, 120 U.S. 430, 7 Sup. Ct. 614, 30 L.Ed. 708; State v. Merriman, 34 S.C. 16, 12 S.E. 619; State v. Sullivan, 43 S.C. 205, 21 S.E. 4; Perry v. State, 110 Ga. 234, 36 S.E. 781; State v. Asbell, 57 Kan. 398, 46 P. 770; Moore v. State, 96 Tenn. 209, 33 S.W. 1046.

Our attitude on questions somewhat different, yet similar to that involved here, is shown in the case of State v. Hart ( Wash.) 203 P. 4.

We do not, however, find it necessary to choose which line of decisions we will adopt, because here it is perfectly manifest that the error, if any, was without prejudice. The bullet had entered the left side, and, in answer to the question objected to the doctor testified that the deceased must have had his left side towards the defendant when the shooting was done. This fact is so manifest that there could not possibly be any prejudice in allowing the doctor, or any one else, to testify to it.

5. On cross-examination of the appellant, the prosecuting attorney asked him if he had not made certain statements at the police station, in the presence of certain named individuals concerning the manner and circumstances of the homicide. The witness answered that he did not remember those conversations, and did not remember anything that occurred after the deceased had...