State v. Fairfield

• Decision Date: 18 April 1927
• Docket Number: 19953.
• Parties: STATE v. FAIRFIELD et al.
• Court: Washington Supreme Court

255 P. 661

143 Wash. 355

STATE v. FAIRFIELD et al.

No. 19953.

Supreme Court of Washington, En Banc.

April 18, 1927

Appeal from Superior Court, Snohomish County; Alsten, Judge.

On rehearing. Judgment affirmed.

For former opinion, see 140 Wash. 349, 248 P. 810.

Joseph H. Smith, of Everett, for appellant.

C. T Roscoe, John C. Richards, and Charles R. Denney, all of Everett, for the State.

FULLERTON J.

This cause was first heard by a department of this court following which an opinion was handed down affirming the judgment of conviction rendered in the trial court. State v. Fairfield, 140 Wash. 349, 248 P. 810. On this second hearing, all of the errors assigned for reversal at the first hearing have been reargued, but we do not feel that we need review them again in detail. We think the information sufficient, that there was sufficient proof of venue, and that there was ample evidence from which the jury could find that the place charged to be maintained as a place for the unlawful sale of intoxicating liquor was so maintained, and that the appellant was at least a joint proprietor of the place.

The principal contention of the appellant is, however, that the department was wrong in holding that the trial court did not err in admitting evidence of the reputation of the place as a place maintained for the unlawful sale of intoxicating liquor. Our attention is called to our recent cases of State v. Radoff, 140 Wash. 202, 248 P. 405 and State v. Espeland (Wash.) 251 P. 562, and it is argued that the holding in the department opinion is contrary to our holding in these cases. But we think the appellant mistakes the effect of the cases which he cites. In the first of the cases we said:

'From the testimony it appears that the appellant himself was conducting business in the place which it is alleged was a joint, without the assistance of any one, and that all possession of intoxicating liquor, sale, or disposal of it, was had and made, if at all, by the appellant himself. The appellant admitted that he was the owner of the place and in the actual conduct of business there at all the times referred to in the action. Under such circumstances, to permit witnesses to testify to the general reputation of the place, as being one where intoxicating liquor was sold was erroneous. The purpose of the admission in cases of this character of evidence of reputation is to establish the knowledge of the person being prosecuted of the character of the business being conducted. Evidence of reputation is, therefore, unnecessary in a case where an owner is on trial who is conducting the business unassisted by any agent or servant or employee. In such case, the general rule should apply that reputation which is hearsay evidence is not proof upon which a conviction can be had.'

In the second of the cases, it was shown that the accused was the person who actually maintained the place, and had 'full knowledge of all that was done there in connection with the alleged unlawful sale of intoxicating liquor,' and that the evidence of the reputation of the place was introduced as cumulative evidence. This we held error, using this language:

'In our late decision en banc in State v. Radoff 248 P. 405, we held testimony of this nature to be erroneously received to the prejudice of the accused; there being no occasion to bring home to the accused knowledge of the maintenance of

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