State v. Hardamon, 30210.

• Decision Date: 13 November 1947
• Docket Number: 30210.
• Citation: 29 Wn.2d 182,186 P.2d 634
• Parties: STATE v. HARDAMON.
• Court: Washington Supreme Court

186 P.2d 634

29 Wn.2d 182

STATE v. HARDAMON.

No. 30210.

Supreme Court of Washington

November 13, 1947

Department 2

Tealman W. Hardamon was convicted of assault in the second degree and he appeals.

Affirmed.

Appeal from Superior Court, King County; James T Lawler, judge.

Charles M. Stokes, of Seattle, for appellant.

Lloyd Shorett and John E. Prim, both of Seattle, for respondent.

BEALS Justice.

The defendant, Tealman W. Hardamon, was charged, by information filed by the prosecuting attorney for King county, with the crime of assault in the second degree, committed upon one William L. Smith, the alleged offense having occurred in King county, Washington, September 26, 1946. The defendant entered a plea of not guilty, and, upon his trial, the jury returned a verdict of guilty as charged. After overruling defendant's motions in arrest of judgment or, in the alternative, for a new trial, the trial court entered judgment declaring the defendant guilty of the crime with which he was charged and sentencing him to confinement in the state penitentiary for not more than 10 years. From this judgment and sentence, the defendant appealed to this court.

Appellant assigns error upon the admission in evidence of a photograph of the complaining witness; upon rulings of the trial court sustaining objections interposed by the prosecution to questions propounded to the appellant while on the witness stand; upon the refusal of the trial court to give two instructions requested by appellant; upon the denial of appellant's challenge to the sufficiency of the evidence, which, in his brief, it is stated was made at the close of the state's case in chief; upon the denial of appellant's motion in arrest of judgment and his motion for a new trial, and upon the entry of the judgment appealed from. Appellant also assigns error upon certain alleged misconduct of the prosecuting attorney, contending that appellant's rights were prejudiced by such conduct.

From the evidence, it appears that on the 26th day of September 1946, appellant was riding upon a southbound city bus proceeding along First avenue and First avenue south in the city of Seattle; that the complaining witness, William L. Smith, and Russell Herigstead, a friend of his, boarded the bus at some point on First avenue, not far from its intersection with Madison street; that Smith was carrying two suits of his clothes which he had picked up at the cleaner's; that appellant was seated in the left-hand corner of the cross-seat in the back of the bus; that one Joseph Ostlie was sitting next to appellant; that Smith stood for a while, there being no vacant seat; that Herigstead was seated on the left side of the bus, facing the aisle, directly in front of appellant; that Herigstead was then holding Smith's clothes; that, after a short time, the seat on Ostlie's right was vacated and Smith sat down; that appellant commenced eating a crab or crabs which he was carrying in a newspaper or a paper bag; that he broke the crab shells, using a knife, and ate the meat.

Evidence was introduced to the effect that appellant was careless in disposing of the shells and that fragments, together with some of the liquid from the crab, landed on nearby passengers and upon Smith's clothing, which was held by Herigstead; that Smith requested appellant to stop distributing refuse from the crabs, but that appellant persisted in doing so. Evidence introduced by the prosecution was to the effect that appellant used foul language, and that, when appellant rose from his seat to leave the bus, a fight occurred between appellant and Smith, with the result that Smith received a serious cut on his cheek and ear, inflicted by the knife which appellant had been using in breaking up and eating the crabs. Appellant admitted cutting Smith with his knife, but claimed he used the knife in self-defense. The prosecution's evidence tended to prove that appellant, without provocation, assaulted Smith with his knife and inflicted a serious injury upon him; while evidence was introduced on behalf of appellant to the effect that, when he rose to leave the bus, he was kicked by Smith or some other person. In any event, it is evidence that a fracas occurred, and that Smith suffered a serious injury. The jury believed the testimony introduced by the prosecution to the effect that appellant committed an assault upon Smith, and the evidence supports the jury's findings in this particular.

During the course of the trial, the prosecution offered in evidence a photograph of Smith, showing his face bandaged, Smith testifying that the photograph was taken about four days after the infliction of the injury. Appellant objected to the offered evidence, contending that the photograph was self-serving; that no testimony was offered as to who took the photograph, and that the offered evidence was immaterial and prejudicial and was admitted without any proper foundation having first been laid. The ruling of the trial court in admitting the photograph will not be reviewed on appeal, in the absence of a showing of abuse of discretion, and no such showing is disclosed by the evidence Before us. 4 Jones Commentaries on Evidence (2dEd.) 3219, § 1752. In admitting the photograph in evidence, the trial court did not commit error.

State v. Fateh-Mohamed, 76 Wash. 462, 136 P. 676; State v. Arnold, 144 Wash. 367, 258 P. 20; State v. Wolfsen, 154 Wash. 383, 282 P. 216; State v. Clark, 21 Wash.2d 774, 153 P.2d 297. In the case at bar, we see no possible prejudice to appellant in the admission of the photograph in evidence.

Appellant contends that the prosecuting attorney, conducting the trial on behalf of the state, was guilty of misconduct in bringing Before the jury a coat, having the same marked for identification, and asking a witness if the coat resembled that worn by Smith at the time of the fight with appellant. The coat was not offered in evidence by the prosecution, and it does not appear that appellant requested the court to make any ruling on the matter or instruct the jury concerning the same. While the acts of the prosecuting attorney in causing the coat to be exhibited to the jury, interrogating a witness concerning the same, and having the coat marked for identification but not offering it in evidence, are nowise to be commended, and while, under certain circumstances, such conduct might constitute error, upon the record Before us, appellant's assignment of error in this connection is without merit.

It was appellant's contention, supported by his testimony at the trial, that appellant, in striking Smith in the face with his knife, acted in self-defense. Appellant, under his third assignment of error, argues that the trial court refused to allow him to testify 'as to the state of his mental condition at the time of the occurrence regarding whether he was in fear of great bodily harm being done him.' The trial court permitted the appellant to testify that he was in fear. The record discloses no...