State v. Bogart, 29356.

• Decision Date: 16 November 1944
• Docket Number: 29356.
• Citation: 21 Wn.2d 765,153 P.2d 507
• Parties: STATE v. BOGART.
• Court: Washington Supreme Court

153 P.2d 507

21 Wn.2d 765

STATE v. BOGART.

No. 29356.

Supreme Court of Washington

November 16, 1944

Department 2.

Oran E Bogart was convicted of contributing to delinquency of a minor, and he appeals.

Affirmed.

Appeal from Superior Court, Yakima County; Robert J. Willis, judge.

J. P Tonkoff, of Yakima, and Chas. F. Bolin, of Toppenish, for appellant.

Lloyd L. Wiehl, Pros. Atty., and George M. Martin, both of Yakima for respondent.

MALLERY Justice.

The defendant appeals from a conviction of contributing to the delinquency of a minor, on one count of an information which alleged the offense as having been committed on Monday, January 31, 1944. The state proved by a handwriting expert, who examined and compared the appellant's signature with certain hotel registers, that he had signed the name Bellington on the registers of the Caledonia and Morrison hotels in the city of Seattle during the preceding week.

The state also proved by the same method that the following written instrument was in the handwriting of the appellant. The instrument was found by the sister-in-law of the minor in the pocket of her jacket which she had worn on the weekend of Saturday, January 29th. It is as follows:

'Hotel Morrison

'509 Third Avenue

'Opposite County-City Building

'Seattle, Wash.

'Darling----

'Thursday 4 PM--I have purchased a room here and it is my intention to make connections for you too when you arrive Monday. I will send a telegram and also a letter the first thing in the morning. If you miss one you will get the other. Be sure and call for your mail Sat. Before office closes. I have been wondering about M_____. Will she tell that you were not in school Monday and Tuesday. It would probably be best if you went Monday morning and then caught that 11/50 bus out of Yakima. It arrives here 4:35 in the afternoon. Go into the bus station and call a cab or a taxi and they will bring you to the hotel or if something happens you may call the hotel and ask for Mr. Bellington.

'I will have your room purchased for you. It will be next to mine with bath between. When you get out of the taxi and enter the hotel, go strait back to the waiting room and I will be waiting there. You will be listed as my daughter, so don't forget that when you address or speak to me to call me daddy--not Darling--ha! ha! The heading of the letter gives the address. I will be in Sumner Monday morning and you can telephone me 153-J, Sumner and ask for me by my right name. I think I will be the only one there so I will answer the call. Phone any time Before 9 o'clock in the morning Monday if you can't come or the day or time has to be changed. If everything is as we planned then it won't be necessary to call. If there is no news then I will know that you will be here in the afternoon. If something should enterfer after 9 A. M. then call me at the hotel long distance after 1 o'clock. But be sure and call for Bellington if you have to call the hotel. Am hurrying so as to get this out on the night mail. You can leave here the next morning on 7 A. M. bus and you will arrive back in Yakima at 12:36 noon. That will let you go back to school in the afternoon. I think it best that you go to school Mon. morning and Tues. afternoon. Then if M_____ said something it would still be safe. Or if your Dad should try to contact you for some reason it would be safer. Be careful sweetheart, and have a good excuse of your whereabouts in case you are questioned. I intended to give you money when I last saw you but it sliped my mind so am enclosing $10.00 in this letter to cover expenses. I hope you receive it as I don't want to put any address on the outside of the letter. If I change address or places to meet you I will state it in telegram. If not I will just say all is well. I think that is all, now darling. I will write in the morning again.

'I love you dear and am looking forward to Monday.

'By By

'Oren'

The appellant contends that the instrument was inadmissible upon the ground that, since the appellant denied writing it and the minor denied receiving it, it is a case of an inference being based upon an inference. That is to say, it is only an inference that the minor ever had possession of the instrument, and upon that inference is based the further inference that the appellant wrote and transmitted it to her.

We think this is not a case of an inference being based upon an inference. There was proof that the instrument was written by the appellant. While it was circumstantial evidence, based on expert testimony from a comparison of the instrument with the appellant's writing, yet it was competent evidence and entitled the jury to believe that the appellant wrote the instrument. The finding of the instrument in the pocket of the jacket worn by the minor on the week-end was competent circumstantial evidence that she had had possession of it. Her denial of having had possession of it was impeached by the latter itself, since she acted in accordance with it. See State v. Fry, 169 Wash. 313, 13 P.2d 491. The denial did not make it inadmissible, it only made an issue of fact for the jury.

The minor, when called as a witness by the state, did not testify as expected. The state claimed surprise and impeached her testimony by producing witnesses who testified to her previous contradictory statements. The court meticulously required the state to lay a proper foundation for impeachment and to frame the impeachment question in the proper form.

Appellant contends that this was error, upon the ground that it was an attempt to prove the state's case by hearsay evidence and was not proper impeachment for the reason that the testimony impeached was negative in character. Of course, a party cannot prove a case by hearsay evidence. The impeachment had no purpose other than to counteract the surprise testimony, which, if believed, would have constituted a complete defense. If the impeachment were wholly successful, it would accomplish no more than to have the witness' testimony disregarded by the jury, in which case, the party calling the witness, though not benefiting from the testimony, would at least not be injured by it. The rule is that, if the surprise evidence is negative, that is to say, does not tend to prove a fact adverse to the interest of the party calling the witnesses, impeachment is not proper. In no case is the party calling a witness entitled to base his case on hearsay testimony. In this case the evidence was not negative.

We set out enough of the testimony to illustrate its positive character:

'Q. Did you receive a letter from the defendant? A. I did not.

'Q. You didn't receive a letter on the morning Before you left? A. No.

'Q. Or on the Saturday of the week Before you left? A. No.

'Q. Never sent a letter? A. No.

'Q. Has the defendant ever written you a letter? A. No. (letter marked Plaintiff's Id. 1.)

'Q. Showing you Plaintiff's Id. 1, did you ever see that? A. I saw it in Seattle.

'Q. Did you ever see it Before then? A. No, I did not.

'Q. You know who wrote that? A. No. * * *'

There can be no question but that this type of testimony is positive and not negative. The testimony could not have been more damaging had she been called as a witness for the defense. It was not a case of omission or failure to remember. It was adverse to the party calling the witness and constituted a complete defense. Impeachment was therefore proper. See State v. Kellog, 91 Wash....