State v. Alden
| Decision Date | 14 March 1968 |
| Docket Number | No. 39350,39350 |
| Citation | 438 P.2d 620,73 Wn.2d 360 |
| Court | Washington Supreme Court |
| Parties | The STATE of Washington, Respondent, v. Harry G. ALDEN, Appellant. |
Wright, Wendells, Froelich & Power, Alan L. Froelich, Seattle, for appellant.
Ed Beeksma, Pros. Atty., Coupeville, for respondent.
The appellant was tried and found guilty on a charge of second degree arson. He was represented by court-appointed counsel. After his conviction, he hired counsel to represent him on appeal.
It is first urged that the court erred in permitting experts to testify that, in their opinion, the defendant started the fire. It is suggested that this testimony was inadmissible because it concerned an ultimate issue to be decided by the jury. In addition to the fact that no objection was taken to the admission of this testimony, there is no authority cited in support of the contention that the testimony was inadmissible. This is not surprising, inasmuch as a number of years ago this court followed the suggestion of Professor Wigmore (see 7 Wigmore on Evidence § 1920 (3d ed., 1940)) and others that the rule excluding the opinion of a witness, on the mere ground that it concerns an 'ultimate' issue, be discarded. In what is described in the 1964 pocket part to that volume, at page 8, as a 'lucid opinion by Finley, J.,' this court repudiated the theory and held that, if the opinion of a qualified expert will aid the jury in reaching its verdict and will not mislead it to the prejudice of the objecting party, it is proper evidence even though it may be an opinion on the 'ultimate' issue. Gerberg v. Crosby, 52 Wash.2d 792, 329 P.2d 184 (1958). That case has been cited frequently and most recently in Swartley v. Seattle School Dist. No. 1, 70 Wash.Dec.2d 16, 421 P.2d 1009 (1966). The appellant admits the competency of the witnesses and makes no contention that the testimony was misleading or irrelevant. It may have been superfluous, in that the jury could well have drawn the same inferences from the facts testified to by these experts, but that hardly renders it prejudicial.
The second contention of the appellant is that another witness, the local fire chief, was allowed to testify to a matter on which he was not qualified to speak, namely, the length of time the fire had been burning when the fire department arrived. The appellant recognizes that the qualifications of a witness are a matter for the trial court to pass upon and does not point out in what manner the witness was lacking in qualifications. We cannot say, on the strength of a bare allegation in the brief, that the trial court abused its discretion in allowing the testimony.
It is next urged that, by permitting testimony that the appellant misrepresented himself to an insurance agent as a medical doctor and misrepresented facts about his career and other matters, the trial court allowed the prosecution to put the character of the appellant in issue, even though he did not take the stand. As the respondent points out, an intent to defraud was an element of the crime charged and the evidence which was admitted was relevant in establishing both motive and this intent. Also, as the appellant concedes, there was no objection made when the questions which elicited these answers were propounded and, consequently, the trial court was not given an opportunity to avoid the error, if indeed it was error.
The appellant urges, however, that he is entitled to have the alleged errors reviewed in spite of the failure to object. He cites cases wherein this court has held that a new trial will be granted even though no objection was made, if the evidence was admitted under circumstances which were such that an objection would not have been effective (State v. Suleski, 67 Wash.2d 45, 406 P.2d 613 (1965)) or where the prosecuting attorney engaged in misconduct...
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