State v. Bozovich

• Decision Date: 22 September 1927
• Docket Number: 20481.
• Parties: STATE v. BOZOVICH.
• Court: Washington Supreme Court

259 P. 395

145 Wash. 227

STATE v. BOZOVICH.

No. 20481.

Supreme Court of Washington

September 22, 1927

Department 2.

Appeal from Superior Court, King County; Moriarty, Judge.

Gabriel R. Bozovich was convicted of murder in the second degree, and he appeals. Reversed.

John J Sullivan, John E. Ryan, Jr., and V. G. Frost, all of Seattle for appellant.

Ewing D. Colvin and Eugene Meacham, both of Seattle, for the State.

ASKREN, J.

This is an appeal from a conviction of murder in the second degree. The appellant, with one Milton Chaousis and some others, was gambling on the afternoon of January 15, 1926. Appellant accused Chaousis of cheating, and a fight ensued. Later, when leaving the room, appellant shot Chaousis four times, killing him. Appellant was charged with murder in the first degree and, upon trial, the jury returned a verdict of second degree murder.

It is urged that a challenge should have been sustained to the evidence at the close of the state's case, because there was no evidence that death came from the bullet wounds. Witnesses for the state testified concerning the shooting and one witness testified that the deceased as he lay on the sidewalk was dead. But, it is said this witness made no examination of the body of the deceased, and that his statement was a mere supposition. With this we are unable to agree. If the question of what caused the death were really a debatable issue in the case, this testimony would probably not be of great value. But, as against no opposed testimony evidence that deceased, in apparent health, was shot four times with a .38 caliber revolver, fell unconscious to the sidewalk, and a statement by a witness that he lay there dead, is surely prima facie evidence of that fact. While it is customary in cases of this character to introduce medical witnesses to establish the fact, proof thereof is not confined to that character of testimony. There was no issue in this case as to what caused death. Death was conceded throughout the trial, and the appellant did not deny the killing, but claimed that it was done in self-defense.

It is next urged that prejudicial error was committed in permitting Dr. Corson, King county coroner, to testify from a report of the death made by a Dr. William Jones that deceased came to his death as a result of gunshot wounds.

It appears that counsel for the state, fearing that the objection made by appellant's counsel, and which we have just disposed of, might be meritorious, offered to prove this report of death in order to have the record complete upon the point. It appears, however, that the witness Corson did not know the handwriting of Dr. Jones, and under no circumstances disclosed by the record was the evidence competent. But, while this was error, it was not in any sense prejudicial. The only point sought to be proved was the physician's report as to the cause of death. This was offered in rebuttal. But prior thereto the appellant had testified to the shooting and its reasons, and it was therefore no longer an issue in the case. If it had been an issuable point, the evidence would have been prejudicial. Since it was not, there could be no more than harmless error in admitting this testimony.

It is next urged that the verdict is contrary to the evidence. This assignment of error raises the question of the deductions to be drawn from the testimony of the various witnesses. There is no need to set out even a portion of it. We have read the more than 600 pages of the statement of facts, and find that there was ample evidence, if believed by the jury, to sustain the verdict. The evidence was in conflict, but it was the jury's province to choose the testimony it would believe.

The most serious question in this case revolves around the claim of misconduct of the prosecutor while cross-examining certain character witnesses offered by appellant. When the witness Flood, a state service officer of the American Legion, testified that he had known the appellant since 1922, and that his general reputation since that time as being a peaceable and law-abiding citizen was good, his cross-examination took a wide field. He was asked concerning his knowledge of certain events in Alaska prior to his acquaintance in such a way as to get before the jury in the most prejudicial manner of facts which the prosecutor evidently had some information of. The cross-examination is too long to be set out in this opinion, but a sample of the questions will show the method used.

'Q. Have you heard about his nearly killing a man in Alaska?

'Mr. Sullivan: Now, just a minute. I certainly object to that, and counsel knows it is not proper. I asked for the general reputation since 1922. I object to that as not proper cross-examination, and ask your honor to rule on it.

'The Court: Objection sustained.'

And again:

'Q. Did any of the people that you have talked to tell you that he had so seriously injured a man in Alaska----

'Mr. Sullivan: The court has just ruled that it is improper for counsel to go into that. I object as not proper cross-examination--an attempt to put something, by reason of his statement, before this jury that is prejudicial, and I object to it as not proper cross-examination.

'The Court: Mr. Sullivan, the court does not know the question until it is asked.

'Q. Did any of these people that you talked with tell you that he so seriously injured a man----

'Mr. Sullivan: Just a minute. I feel it my duty, and I say with all sincerity, and I want the record to show, that unless counsel can show that something has happened since 1922 that would tend to deprecate the character of this defendant, that it is improper, and at this time I ask the court to instruct him to base his time since 1922, because that is the time, since that time, that I asked the questions, and otherwise it is improper, and I object to it on that ground, that he must do that. Unless he does it, it is improper.

'The Court: Proceed. Objection overruled. Exception allowed.

'Q. Have you heard that he so seriously injured a man in a fight which he started in Alaska, that that man was confined to the hospital for more than six months? A. I heard nothing about that whatsoever----

'Mr. Sullivan: Now I object to that. I want the record to show that I am objection to all of this testimony as being immaterial and irrelevant and neither proving nor disputing any fact in this case, and not proper cross-examination, and not being based upon an alleged

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