State v. Heaton

• Decision Date: 19 October 1928
• Docket Number: 21181.
• Citation: 149 Wash. 452,271 P. 89
• Parties: STATE v. HEATON et al.
• Court: Washington Supreme Court

271 P. 89

149 Wash. 452

STATE v. HEATON et al.

No. 21181.

Supreme Court of Washington

October 19, 1928

Department 2.

Appeal from Superior Court, Spokane County; Fred H. Witt, Judge.

George S. Heaton was convicted of being a jointist, and he appeals. Reversed, and a new trial ordered.

Powell & Herman, of Spokane, for appellant.

Chas W. Greenough, of Spokane, for the State.

BEALS J.

Appellant George S. Heaton, and one Carl Johnson were jointly informed against, charged with the offense of being jointists. A trial in May, 1927, resulted in a verdict of guilty as to defendant Johnson, the jury disagreeing as to appellant Heaton. A second trial of appellant resulted in a verdict of guilty and from a judgment on this verdict and sentence based thereon he appeals.

When the case was called for trial, the court, on motion of the prosecuting attorney and over the objection of appellant allowed the indorsement on the information of the names of three additional witnesses for the state. The appellant thereupon moved the court for a continuance and assigns the denial of this motion and the permission granted to the state to indorse on the information the names of the additional witnesses as error.

The granting by the court of the state's motion to indorse the names of additional witnesses on the information and the refusal of the court to grant appellant a continuance were matters largely within the sound discretion of the trial court, and, no abuse of this discretion appearing, we find in the action of the court no reversible error.

Appellant had been for some years engaged in business in the city of Spokane operating an establishment representing a large investment, known as 'The Antlers,' including a soda fountain, restaurant, confectionery department, bakery, and ice cream factory. Evidence was introduced by the state tending to prove that during the month of March, 1927, certain persons had bought whisky at appellant's place of business, and that appellant knew that liquor was being sold there.

Appellant assigns as error certain rulings of the trial court sustaining objections urged by counsel for the prosecution to questions propounded on cross-examination to one of the state's witnesses. This witness testified that he had bought liquor at appellant's place of business in the presence of appellant, and on cross-examination admitted that during the same month he had bought liquor at other places in the city of Spokane. He was then asked, on further cross-examination, whether or not he remembered any of the bars where he had bought liquor, to which question an objection by the prosecution was sustained. In view of answers by the witness to similar questions propounded by appellant's counsel, we cannot say that the cross-examination on this point was unduly restricted, to appellant's prejudice.

The testimony of one Carl Johnson, who had been informed against jointly with appellant, given upon the former trial, was read on appellant's behalf on his second trial. This witness was referred to by other witnesses sometimes as Carl Johnson, and sometimes as Frank Johnson, and had testified that his true name was Carl Franklin Johnson, there being offered in evidence in support of this statement his honorable discharge from the United States Army, an objection to the admission of which was sustained. In view of the fact that the witness testified that his true name was as shown in the honorable discharge, we cannot say that the refusal of the court to admit the exhibit constitutes reversible error, although the proffered evidence might well have been received.

At the conclusion of the testimony, and again after the closing of the argument to the jury, appellant moved the court to discharge the jury and declare a mistrial on the ground of misconduct of the attorney for the state, which motions were denied by the court; to which rulings appellant duly excepted. Appellant also moved for a new trial and assigns as error the court's adverse ruling thereon.

During the course of the trial the credibility of one of the state's witnesses became a matter of some importance for the consideration of the jury, one witness for appellant testifying that the reputation of the witness referred to for truth and veracity was bad, while two witnesses for the state testified that it was good. In his argument to the jury the prosecuting attorney, referring to the matter of the credibility of this witness, and other witnesses, for the state, spoke as follows:

'And then they attempt to make a comparison between the testimony of this man Johnson and Joe Hoffman by attacking Joe Hoffman's reputation in the community for truth and veracity. Members of the jury, I want to tell you now, that so far as Joe Hoffman is concerned and Frank Keenan and any other officers involved in this case, there is no question in my mind in regard to their honor. I have worked with them long and I would be in a position to know, and if I thought there was anything wrong with them I would not even put them on the witness stand here.'

In the preliminary examination of prospective jurors it appeared that some time prior to the date the case was called for trial, but after the names of the jurors from whom the jury to try appellant would be selected had been published, some person or persons unknown had telephoned to the homes of several of the members of the panel and attempted to discuss with them, or with members of their families, the case then pending against appellant, or the general question of the enforcement of the prohibition laws. The person telephoning generally opened the conversation by stating that he was from the sheriff's office or some similar law enforcement agency; but the actual source of the telephone calls or the motive which actuated them was not disclosed on the trial. Whether they were instigated by persons interested in the prosecution, by appellant, or by some third party connected with neither, remained an open question. Whatever the source the attempts to discuss the case with prospective jurors were admittedly grossly improper. The following from the cross-examination of appellant seems to be the only reference to this matter which occurred during the course of the taking of testimony on the trial:

'Q. You have been checking on jurors in this case, haven't you? A. I have not. Checking them, how do you mean? Q. Checking on jurors in this case, haven't you? A. Been checking on jurors in this case? Q. Yes, sir. A. Myself? Q. Yes, sir. A. Nothing more than through my friends. Q. How is that? A. Nothing more than through my friends. Q. Through your friends. One of your friends called himself Johnson, didn't he? A. No, sir, he did not that I know of. Q. And one of your friends called himself Jones? A. No, sir. Q. And one of your friends said he was a police officer? A. I don't think my friends would do that. Q. And some of your friends said he was a city investigator, isn't that right? A. I think you are inferring a whole lot. Q. Is not that correct? A. That is not correct. Q. Didn't you go down to the city of Cheney yourself and talk with one of these so-called friends? A. I talked with a man at Cheney. Q. You talked with a man by the name of Patton, didn't you? A. Yes, sir. Q. And you went out to Otis Orchards and talked to a man by the name of Corrigan, the blacksmith? A. I don't remember it. Q. You don't remember? A. I talked to several men at different places. Q. You don't remember of going out to Otis Orchards at all? A. Yes, sir, I remember going out to Otis Orchards. Q. You talked with a blacksmith out there by the name of Corrigan? A. I don't know whether I did or not. Q. You asked him about the juror McDonald, where he lived, didn't you?'

An objection to the last question was sustained on the ground of its immateriality. Upon this phase of the case the court instructed the jury as follows:

'You are instructed that after jurors have been summoned to serve at a term of court it is not unlawful for parties having cases to be tried at that term to use lawful means to make inquiries and collect information regarding the qualifications of any such juror as may be called upon to serve in the trial of such case. On the other hand, it is unlawful for any person, either directly or indirectly, to influence or attempt to influence such a juror or improperly converse with a prospective juror in relation to the merits of any action, suit or proceeding.'

Counsel for the prosecution in his closing argument referred to these telephone calls in the following language:

'You remember that nine-tenths of the jurors that came into this box said that somebody had called them and said one said, 'I am from the prosecutor's office,' another, 'I am a city prosecutor,' another, 'I am the city investigator,' another, 'I am Jones,' another, 'I am Johnson,' and 'what church do you belong to' or 'does your husband belong to,' and 'you know that Heaton is guilty and we want to get him.' Whom have we fixed the responsibility on for that very thing but this defendant? He admitted on the witness stand on cross-examination he had been to Cheney and talked with a man in regard to certain jurors out there. I guess it is brought home to him, with a vengeance, and he admits it himself.

'Now, when he said, 'You know that Heaton is guilty,' he or his henchman, or whoever it was, 'you know that Heaton is guilty,' suppose that juror had said, 'Yes, sure, I know he is guilty and I am on the jury,' he would not want that man. Suppose the juror had said, 'Of course not, he is not guilty, we are not going to let them get away with it,' that is the juror he wants, but to throw the suspicion over on the other side and me, the prosecuting attorney, can you imagine the

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