State v. Crockett

• Citation: 161 Wash. 262,296 P. 1041
• Decision Date: 11 March 1931
• Docket Number: 22941.
• Parties: STATE v. CROCKETT.
• Court: Washington Supreme Court

296 P. 1041

161 Wash. 262

STATE v. CROCKETT.

No. 22941.

Supreme Court of Washington

March 11, 1931

Department 2.

Appeal from Superior Court, Kilsap, County; H. G. Sutton, Judge.

George T. Crockett was convicted of having intoxicating liquor in his possession with intent to sell the same, and he appeals.

Affirmed.

Wright & Catlett, of Seattle, for appellant.

James W. Bryan, of Bremerton, for the State.

MILLARD J.

By the first count of an information the defendant was charged with the crime of opening up, conducting, and maintaining 'a place known as the Kolgray Hotel for the unlawful sale of intoxicating liquor.' By the second count of the information the defendant was charged with the crime of having intoxicating liquor in his possession with intent to sell the same. The trial resulted in a verdict of not guilty on the first count and guilty on the other count. From the judgment and sentence pronounced in accordance with the verdict, the defendant has appealed.

Counsel appearing for appellant in this court did not represent him in the trial court.

Appellant first contends that the testimony introduced by the state as to the reputation of the Kolgray Hotel as a place where intoxicating liquor was sold should not have been admitted.

The appellant was being tried on a jointist charge. The gist of the charge is the maintaining of a place for the sale of intoxicating liquor. The appellant denied all knowledge of sales of liquor in that hotel, and testified that he did not possess any intoxicating liquor in that place; that he never had had any intent of selling intoxicating liquor. There was not, in fact, any evidence that the appellant actually participated in the making of any sales at the hotel. There was evidence, however, tending to prove that the appellant knowingly permitted others to keep liquor therein for such purpose. The appellant was guilty of maintaining a place for the unlawful sale of liquor if he knowingly permitted other persons to keep liquor in that place for such purpose although the appellant, himself, did not make nor did he intend to make any sales. The evidence complained of was offered to support the charge contained in the first count of the information (the jointist charge) as to which it was admissible. It does not appear that the appellant requested instructions as to this phase of the case. He should have requested that, if the jury found him not guilty on the first charge of maintaining a joint (to the proof of which the evidence was, of course, admissible), but found him guilty of the crime of possession with intent to sell, the evidence should not be considered by the jury in arriving at their verdict of guilty on the second count of the information. Appellant may not now successfully raise the question.

'We have upheld the admission of evidence as to reputation of a place in jointist cases where the gist of the charge is the maintaining of a place for the sale of intoxicating liquor and no evidence that the person charged had actually participated in the making of sales at the place has been produced. State v. Perrin, 127 Wash. 193, 220 P 772; State v. Panovich, 136 Wash. 20, 238 P. 903; this upon the theory that '* * * Evidence of common repute is not competent to prove the substance of the issue but is competent only to prove notice of a fact when notice of such fact becomes a material inquiry.' State v. Fairfield, 143 Wash. 355, 255 P. 661, 662.' State v. Remick, 156 Wash. 22, 286 P. 67, 68.

'The evidence tended to show that he conducted it jointly with another. While there was evidence of actual sales of intoxicating liquor at the place, there was no positive evidence that the appellant himself made such sales or participated in or had knowledge of the sales made by others; in fact, he not only denied that he assisted in maintaining it as a place for the unlawful sale of intoxicating liquor, but denied having knowledge that it was so maintained. Whether he had such knowledge was, therefore, a material inquiry, and evidence of the reputation of the place was competent on that issue.' State v. Fairfield, 143 Wash. 355, 255 P. 661, 662.

Appellant next contends that the court erred in refusing to admit the testimony of his witness, Mrs. Kate Crockett.

This lady testified that at the time of the trial she resided in Tacoma; that she formerly resided in Bremerton where she operated a hotel a room of which was occupied by a woman who testified on behalf of the state in the case at bar; that she was well acquainted with the woman at that time. The witness was then asked the following questions, objections to which were sustained: 'Would you believe her under oath? Do you know her reputation for telling the truth? Are you acquainted with her as to whether or not she is a truthful person? Do you know whether or not she is a lewd, lascivious person?'

Objection was also sustained to the offer to prove by the witness that the state's witness 'is a lewd, lascivious person and a common prostitute. We also wish to prove by this witness that she is not worthy of belief, that she would not believe her.'

The impeaching witness had been in the hotel business eighteen months in Bremerton prior to her removal to Tacoma. When did she take up her residence in Tacoma? At what time was she a resident of Bremerton? The locality of reputation and the time of reputation of the state's witness were not shown. The proper foundation was not laid for the impeaching by appellant's witness of the reputation or character...