State v. Anderson

• Decision Date: 07 July 1955
• Docket Number: No. 33205,33205
• Citation: 285 P.2d 879,46 Wn.2d 864
• Court: Washington Supreme Court
• Parties: The STATE of Washington, Respondent, v. Ralph E. ANDERSON, Appellant.

Page 864

46 Wn.2d 864

285 P.2d 879

The STATE of Washington, Respondent, v. Ralph E. ANDERSON, Appellant.

No. 33205.

Supreme Court of Washington, Department 1.

July 7, 1955.

Max Kosher, Victor Haglund, Everett, for appellant.

Tom A. Durham, Jack Rowles, Bellingham, for respondent.

HAMLEY, Chief Justice.

Ralph E. Anderson appeals from a judgment and sentence entered after his trial and conviction of the crime of robbery. The assignments of error relate to the admissibility and sufficiency of the evidence.

On the evening of May 6, 1952, the Kulshan tavern, in Bellingham, Washington, was robbed by two men. Rex Odell, the owner of the tavern, and Mrs. Elsie Carlson, an employee, were on duty at the time. After the men had left, Odell called the police.

Shortly thereafter, Odell spent considerable time at the Bellingham and Seattle identification bureaus, examining photographs, but found no picture of either robber. On Christmas morning, 1952, Odell saw one of the two robbers in the London cafe, at Everett. He gave this information to the Bellingham police when he returned to that city. In the fall of 1953, he was shown some more photographs by the Bellingham police, and selected two of them as being pictures of the two robbers. Shortly afterwards, in October, 1953, Odell identified appellant in a police lineup as one of the robbers. Mrs. Carlson and one of the customers who had been in the tavern on the night of the robbery similarly identified appellant.

Lyle Osgood, a relative of appellant by marriage, testified that appellant had a .32 caliber automatic pistol in the summer and fall of 1952. A police officer testified that, when appellant was taken into custody, he could not account for his whereabouts on May 6, 1952. He also testified that appellant at that time admitted that he had owned a .32 automatic, but stated that he had sold it.

Appellant took the witness stand in his own defense, and denied any participation in the robbery. He and several relatives gave testimony tending to establish the defense of alibi. Through other witnesses, and by cross-examination, he sought to show that the state's case was based upon mistaken identification. An additional witness was offered to establish appellant's good reputation for truth and veracity and for being a law-abiding citizen.

Under appellant's first assignment of error, it is urged that the trial court erred in overruling appellant's objections to certain questions asked of appellant's character witness on cross-examination. It is contended that the primary purpose of this cross-examination was to discredit appellant by bringing before the jury specific and unrelated acts of misconduct on his part.

On direct examination, this witness, Gregory Kuehn, testified that appellant's reputation in the community for truth and veracity was good. He also testified that appellant had always been a law-abiding citizen 'as far as I know.' On cross-examination, the witness was asked if he had 'heard' that appellant's immoral conduct with a certain woman relative had been one of the principal reasons why the woman's marriage had broken up. He was also asked if he had 'heard' that appellant had, on a number of recent occasions, gone out with this woman and stayed with her all night. Finally, Kuehn was asked if he had 'heard, or do you know' that appellant had, in the last few years, often been closely associated with professional gamblers and drunkards. The answers to these questions were favorable to appellant.

In this jurisdiction, character witnesses may be cross-examined as to their knowledge of particular acts of misconduct on the part of the person whose conduct is in issue, providing the primary purpose is to discredit the testimony of the character witness. State v. Cyr, 40 Wash.2d 840, 246 P.2d 480.

In the absence of the jury, the prosecuting attorney asked these and other questions of appellant, and obtained a ruling as to their admissibility. Objection to several in this series of questions was sustained, on the ground that they involved incidents of a nature similar to the robbery for which appellant was being tried. The court must have felt that the primary purpose of the excluded questions was to discredit appellant.

As to the questions which were permitted, the court, in the exercise of its discretion, apparently concluded that the primary purpose in asking them was to test the credibility of the character witness. Where this is the primary purpose, the fact that such questions also reflect upon the defendant's character does not require suppression of such questions. We are not convinced that the trial court abused its discretion. This assignment of error is therefore not well taken.

The second assignment of error raises the question of whether the trial court erred in permitting the state to discredit one of appellant's witnesses by means of cross-examination on a collateral issue.

Joe Burrows, called as a witness by appellant, testified, in effect, that he was present at the Kulshan tavern one night after appellant's arrest and release on bail, on which occasion Odell failed to identify appellant. In connection with this testimony, Burrows testified, on direct examination, that he was formerly an Everett policeman, and had left the force due to an injury sustained while in the line of duty. On cross-examination, he was asked if it were not a fact that he was discharged from the police force for reporting sick when he was not sick.

Appellant argues that this constituted cross-examination on a collateral issue, and therefore should have been excluded. He cites O'Neil v. Crampton, 18 Wash.2d 579, 140 P.2d 308.

The O'Neil case does not stand for the proposition for which appellant contends. The court there recognized, but held inapplicable, the rule that a witness cannot be interrogated with reference to matters irrelevant or collateral to the issue before the court, and then be contradicted by the testimony of other witnesses or by other evidence, in order that he and his testimony may be impeached. In such matters, the party cross-examining the witness is concluded by the answers given. State v. Johnson, 192 Wash. 467, 73 P.2d 1342; Warren v. Hynes, 4 Wash.2d 128, 102 P.2d 691.

In the instant case, there was no attempt to impeach the witness on a collateral issue by producing the testimony of other witnesses. The state rested on its cross-examination of the witness, and did not pursue the matter further.

The extent of the cross-examination of a witness on matters immaterial to the issues being tried, or on irrelevant topics brought in to discredit the witness, is very largely one within the sound discretion of the trial court. State v. Powers, 155 Wash. 63, 283 P. 439.

Here, a special effort was made, on direct examination, to establish the credibility of...