State v. Devlin

• Decision Date: 23 August 1927
• Docket Number: 20651.
• Citation: 145 Wash. 44,258 P. 826
• Parties: STATE v. DEVLIN.
• Court: Washington Supreme Court

258 P. 826

145 Wash. 44

STATE v. DEVLIN.

No. 20651.

Supreme Court of Washington

August 23, 1927

Department 1.

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

Edward Devlin was convicted of robbery and murder, and he appeals.Reversed and remanded, with directions.

Beardslee & Bassett and M. H. Cooperman, all of Seattle, for appellant.

Ewing D. Colvin, of Seattle, for the State.

MITCHELL J.

A robbery was committed by a gang of bandits on a street in the heart of the business district in Seattle about 10 o'clock in the forenoon on April 1, 1926.In the act of the robbery one person was killed.Edward Devlin, upon a separate trial, was convicted of both crimes, and he has appealed from a judgment and sentence on the verdict.

The appellant did not testify at the trial.There was abundant proof of the robbery and murder.The appellant was apprehended and lodged in jail within a few hours.No witness at the trial other than the state's witness H. C. Hoover made any pretense or claim of identifying the appellant as having been present at the scene of the crimes.The witness Hoover testified in chief that at the holdup he attempted to rescue the bag of money as one of the bandits was in the act of taking it from the messenger carrying it, when the appellant, identified by the witness at the trial, stuck an automatic short muzzled gun against the body of the witness and ordered him to 'let go.'On cross-examination on behalf of the appellant, the witness testified that the appellant was a stranger to him, and, while being still further questioned with reference to his identification of the appellant, volunteered the statement that he had seen him in jail, and then testified:

'Q.Yousaw him in the jail?A.Once.

'Q.Youwere taken down for that purpose?A.Yes, sir.

'Q.How many others were taken down?A.Three or four, I guess.

'Q.Was he brought out and shown to you?A.Yes, sir.

'Q.Had you previously seen a picture of him?A.No, sir not before I went up there.

'Q.Before you went to the jail.Before you saw him?A.No, sir.

'Q.Youwere shown a picture after you saw him in the jail?A.No; before.I seen him in the jail.I picked him out of a row--out of a bunch.'

On redirect examination of the witness on behalf of the state the following occurred:

'Q.Counsel asked you if you ever saw a picture of this defendant, Devlin, before you identified him in the city jail.Where did you see such a picture?

'Mr. Vandeveer: Objected to as not proper redirect examination.

'The Court: He may answer the question.

'Mr. Vandeveer: Your honor, of course, knows that the answer will be.

'The Court: What did you say?

'Mr. Vandeveer: I say I assume you can imagine what the answer will be.

'The Court: You inquired about the picture.

'Mr. Vandeveer: I merely asked him if he had seen a picture.He said that he had.

'The Court: He may answer.

'A.I saw it in the rogue's gallery.

'Mr. Vandeveer: I move to strike the answer as prejudicial.

'Q.What do you mean by the rogue's gallery?

'Mr. Vandeveer: Wait until we get a ruling from the court.

'The Court: Motion denied.

'Q.What do you mean by the rogue's gallery?

'Mr. Vandeveer: Objected to as highly improper and prejudicial.

'The Court: Objection overruled.

Mr. Vandeveer: Exception.

'Q.I went down there, and they took me in the police station in the detective department and showed----

'Mr. Vandeveer: Objected to as not responsive.

'The Court: The question is, What do you mean by the rogue's gallery?A.A bunch of pictures in a book down there at the station.

'Mr. Vandeveer: I move that the answer be stricken as not redirect examination, and not proper and prejudicial.

'The Court: Motion denied.

'Mr. Vandeveer: Exception.'

These questions and answers in the redirect examination of the witness, which were allowed over appellant's objections and motions to strike, constitute the first assignment of error.

The contention of the appellant is that the prejudicial effect of the testimony deprived him of a fair trial.Hoover's identification of the appellant was a matter of great importance in the trial.He had never seen the appellant except a few minutes during the excitement at the scene of the crimes.He was taken to the city jail to identify him, as the witness voluntarily stated in testifying.Then, as bearing upon the value of this testimony of identification, he was asked whether he had seen a picture of the man before or after he understook to identify him at the jail.The final answer was that he saw the picture first and because he added, 'I picked him out of a row--out of a bunch,' there was furnished what counsel for the state claims to be justification for the redirect examination complained of.It is argued that it was difficult to tell whether the witness meant that he picked the appellant's picture out of a row or a bunch of pictures, or whether he picked the defendant out of a row or bunch of men, and that to dispel the ambiguity it was not only proper but necessary to have the witness explain.Had that been the purpose, a question to that effect could and should have been asked.He could have been asked to explain whether he meant that he picked the picture out of a row or bunch of pictures, or that he picked the defendant out of a row or bunch of men.Instead, however, the question was, ' Where did you see such a picture?'A perfectly harmless question upon its face, but fraught with danger as a possible, if not probable, preliminary to highly prejudicial matter within the knowledge of those conversant with the real facts, not including the jury, of course.Appellant's protests against that lurking danger being denied, the answer of the witness was, 'I saw it in the rogue's gallery.'Was this the information needed by the state to clear up the supposed ambiguity as to whether the witness had picked the picture out of a row or bunch of pictures or picked the defendant out of a row or bunch of men?To be sure it was not, but on the contrary it was a prejudicial departure from that view or purpose.Was the answer a surprise or did it create any disapproval on the part of the state's attorney?At least the record does not show that he joined in or confessed appellant's motion to strike the answer.Upon denial of the motion to strike the answer, the state, not yet content, but pressing on still further over the line, asked the witness, 'What do you mean by the rogue's gallery?'Had that anything to do with the supposed uncertainty in the witness' testimony as to whether the picture had been picked out of a row or bunch of pictures, or the accused out of a row or bunch of men?And, over objection, that question was answered, and again the state failed to join in or confess appellant's motion to strike the answer as prejudicial.The questions may be asked, first, what had such evidence to do with the question of the guilt or innocence of the defendant of the crimes for which he was being tried?And, second, shall the state be permitted to attack the defendant's character when he himself does not put it in issue?

In State v. Thornton,137 Wash. 495, 243 P. 12, the defendant was convicted of violating the prohibition law.In the opinion in that casethis court said:

'Over the objection of counsel for appellant, one of the officers was permitted to testify upon the trial, in substance, that appellant had, on previous occasions, associated with one Rosen and one Renault, both of whom, as the officer testified, had been violators of the prohibition law and had been convicted therefor.This testimony, so placed before the jury, was manifestly erroneous and prejudicial to appellant's rights in the highest degree.It could have no possible bearing upon the question of appellant's guilt, other than tending to show that he had a bad reputation and was associating with people of bad reputation, as touching his and their possible violation of the prohibition law.'

In State v. Eder,36 Wash. 482, 78 P. 1023, the defendant did not testify at his trial.His wife was a witness for him and on cross-examination, over his objection, she was required to answer that the defendant had been imprisoned for another crime.Upon reversing the judgment, it was said:

'Moreover, it is not the policy of the law to convict a man of one crime by showing that he has, at some time, been guilty of another.As testimony of the kind mentioned establishes the bad character of the defendant, its inevitable effect is to prejudice the minds of the jury against him, causing them to find him guilty of the crime charged on doubtful evidence, or evidence that would not otherwise produce a conviction.It violates, also, another well-settled rule of criminal jurisprudence, namely, it permits the state to attack the character of the defendant when he does not himself put his character in issue.'

In State v. Ferrone,96 Conn. 160, 113 A. 452, the Supreme Court, in speaking upon this subject, said:

'Therefore our law sedulously guards against the introduction of evidence of any matter immaterial or irrelevant to the single issue to be determined.The purpose of these salutary laws might often be defeated if the minds of the jurors were subjected to the influence of facts or considerations having no legitimate bearing on the only question they have to decide, and their verdict be reached under the impulse of passion, sympathy, or resentment.Such a verdict is illegal and will be set aside.Worden v. Gore-Meenan Co.,83 Conn. 642, 652, 78 A. 422;People v. Sharp,107 N.Y. 427, 14 N.E. 319, 1 Am. St. Rep. 851;People v. Molineux, 163[168] N.Y. 264, 61 N.E. 286

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