State v. Fliehman

• Decision Date: 13 December 1949
• Docket Number: 30919.
• Parties: STATE v. FLIEHMAN.
• Court: Washington Supreme Court

212 P.2d 794

35 Wn.2d 243

STATE v. FLIEHMAN.

No. 30919.

Supreme Court of Washington

December 13, 1949

Department 2

Edgar H. Fliehman was convicted in the Superior Court of King County, James T. Lawler, J., for negligent homicide and he appealed.

The Supreme Court, Mallery, J., held that the admission of a written statement signed by a witness to prove substantive facts encompassed in it and not to impeach witness' testimony was erroneous and reversed the judgment.

Henry Clay Agnew, Seattle, for appellant.

Charles O. Carroll, Kathreen Mechem, Seattle, for respondent.

MALLERY Justice.

This is an appeal from a conviction for negligent homicide.

The collision occurred on the early morning of April 18, 1948 in Seattle at the intersection of Empire Way and Beacon Avenue where marginal construction work, marked by carefully illuminated barricades, narrowed the four traffic lanes into the two center lanes for a distance of twenty-four feet. Curtis J. Sweeney was driving south on Empire Way approaching Beacon Avenue. Just as a northbound car passed him near the narrowed portion of the highway appellant's car, also northbound, whipped out from behind the passing car, crossed the center line and struck Mr Sweeney's car head-on, killing his eighteen year old daughter wo was riding with him.

The main question is whether it was reversible error to permit the state to impeach a defense witness' credibility by a prior inconsistent written statement without having laid a foundation for it.

The state produced evidence that appellant, who had been drinking beer earlier in the day, met a companion and a young lady Before midnight in a Seattle tavern where he consumed one more beer. Then the threesome drove south from Seattle searching for a place to eat. Sometime Before the collision appellant's car was observed northbound on the Seattle-Tacoma highway where on three occasions it overtook and passed dangerously close to the witness' car at seventy miles an hour. Ten hours after the accident, officers calling on appellant at the hospital observed evidence of alcohol on his person.

In defense, the appellant's testimony was to the effect that he drank only one beer during the entire evening and early morning, that he had eaten a hamburger and a glass of milk shortly Before the collision, that he drove carefully, that he did not exceed the speed limit and that he did not have any near collisions en route. Appellant's testimony was corroborated by his guest, witness Johnson. However, neither appellant, who suffered a loss of memory as a result of his injuries, nor Johnson, could testify as to any details on appellant's manner of driving immediately prior to the collision. Johnson testified that he fell asleep just Before the collision. This circumstance permitted him fully to corroborate appellant up to that point.

When the defense closed, the prosecutor, in rebuttal, called an officer who identified a written statement signed by Johnson several hours after the collision which read in part as follows: '* * * I had a half dozen or so bottles of beer. I don't think any of us were drunk. I went to sleep shortly after we left Tacoma, and when I awoke I was under the other car * * *.' (Italics ours.)

The statement was admitted in evidence over appellant's timely and proper objection made on the ground that the state, on cross-examination of Johnson, had not laid a foundation for impeachment by self-contradiction. This is assigned as error.

It is error to admit the prior inconsistent un-cross-examined written statements of a witness unless, on cross-examination the witness had been confronted with the self-contradiction and...