State v. Brehan
| Decision Date | 05 January 1927 |
| Docket Number | 20190. |
| Citation | 252 P. 128,141 Wash. 515 |
| Parties | STATE v. BREHAN et al. |
| Court | Washington Supreme Court |
Department 2.
Appeal from Superior Court, Pierce County; Chapman, Judge.
Carl Brehan and R. W. Thompson were convicted, and Tom S. Harper acquitted, of robbery, and the convicted defendants appeal. Affirmed.
Lloyd & Croteau and Hayden, Langhorne & Metzger, all of Tacoma, for appellants.
Robert B. Abel and J. W. Selden, both of Tacoma, for the State.
This is an appeal from a conviction of robbery. Early on the morning of October 15, 1925, one Burnett, who was conductor and motorman on one of the street car lines in the city of Tacoma, was held up by three unmasked men, one of whom had a revolver, and robbed of his watch and $11.65 in money. The following day the watch was sold to a pawnbroker in that city. Two days later the defendants Thompson and Brehan were arrested in a room occupied by them, and from it was taken a Colt automatic army model revolver, identified by the complaining witness as being of the same kind and character as the one used in the robbery. All the defendants offered evidence of an alibi, but the jury returned a verdict finding Thompson and Brehan guilty, and acquitting Harper. Thompson and Brehan appeal.
Many assignments of error are urged. It is first claimed that the court erred in admitting the evidence of two witnesses Joseph Wilson and D. Wilson, father and son, respectively. The appellant Thompson, in support of his alibi, testified that at the time of the robbery he was living at the Central Hotel in Seattle with a man by the name of George Wilson. In rebuttal the state sought to show by the two witnesses referred to that George Wilson was the son of Joseph Wilson and brother of D. Wilson, that he was not mentally right, and that at the time referred to was not in Seattle. Appellant objected upon the ground that the George Wilson of Tacoma was not the George Wilson appellant referred to. The record in this connection is far from being as complete as one could wish for. In explanation it should be said that the stenographer who took the testimony in shorthand had died before his notes could be transcribed, and no reporter could be found who could read the notes. In this dilemma the trial judge had to rely upon his memory and that of the attorneys in certifying the record to this court, and the record is therefore shorn of many things necessary to make a harmonious whole.
The court admitted the testimony of both father and son. But, before the objection was made, the witness D. Wilson had testified that he had a brother named George Wilson, and that he was the same George Wilson to whom appellant Thompson had referred in his testimony. Nothing appears in the record as to the examination of the witness in any wise challenging his statements that his brother was the same George Wilson referred to by appellant. But, even if the court should have refused this testimony, we do not see any harmful error therein. If appellant insisted to the jury that it was not the same person, then we merely have a case where the court permitted evidence as to where a certain George Wilson was on the night in question, with the appellant arguing to the jury that it was not the one he had reference to. Plainly, it seems to us, if the jury believed this was not the George Wilson referred to by appellant, then any evidence as to this one could not by any stretch of the imagination prejudice or mislead them.
It is urged that the prosecutor was guilty of misconduct. The evidence discloses that, after the appellant had testified that he stopped at the Central Hotel in Seattle, he was cross-examined immediately upon this point, and he gave the address as First avenue, Seattle, and specified the telephone number. The prosecutor, not being satisfied with the address given, asked the witness if he was willing to go with a police officer to Seattle and show the hotel at which he was registered. The appellant answered in the affirmative. Upon objection being made, one of which was that it was requiring appellant to give evidence against himself, the following occurred:
That evening the appellant, in company with officers from the sheriff's office, went to Seattle to point out the hotel. The following morning the appellant resumed the witness chair and testified that the name of the hotel was the New England Hotel, and underneath it was a Central Employment Agency, and across the street was a Central Grill; that the hotel was on First Avenue, and the telephone number was as previously given; that he was mistaken the previous day in the name of the hotel.
It is said that the request of the appellant as to whether he would go with an officer to point out the hotel was misconduct on the part of the prosecutor, and was an infringement of appellant's constitutional rights, in that it required him to give evidence against himself. It may be true that it literally required the appellant to give evidence against himself, but it was only by explanation of evidence offered in chief as part of his defense, and it is not that character of evidence that is prohibited by the Constitution. Every answer or admission wrung from a defendant by cross-examination is in effect requiring him to give evidence against himself.
Reliance is placed on State v. Jackson, 83 Wash. 514, 145 P 470, where we reversed a conviction of conspiracy. In that case it was the contention of the state that a draft of the city of Raymond and a certain written statement would tend to prove the crime charged. Prior to trial, the state made a demand upon the defendants to produce those documents. The demand...
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