State v. Henry

• Decision Date: 28 March 1927
• Docket Number: 20389.
• Citation: 143 Wash. 39,254 P. 460
• Parties: STATE v. HENRY.
• Court: Washington Supreme Court

254 P. 460

143 Wash. 39

STATE v. HENRY.

No. 20389.

Supreme Court of Washington

March 28, 1927

Department 2.

Appeal from Superior Court, Kittitas County; Davidson, Judge.

Bernard Henry was convicted of rape, and he appeals. Affirmed.

E. K. Brown, of Ellensburg, for appellant.

Arthur McGuire, of Ellensburg, for the State.

TOLMAN J.

Appellant was charged with two others of having committed the crime of rape. On the first trial one of the defendants was discharged and the jury disagreed as to the remaining two. On the second trial appellant was found guilty and his codefendant found not guilty. From a judgment and sentence on the verdict of guilty this appeal is prosecuted.

Two errors are presented: (1) That the court erred in unduly restricting the appellant's cross-examination of a witness for the state; and (2) that the verdicts upon the last trial are so inconsistent that it was error not to set aside the verdict against this appellant and grant him a new trial.

1. The state produced as a witness one Ritchie, who had for some time prior to the alleged offense been engaged to marry the prosecuting witness, and she and he both testified that at the time of the trial they were still so engaged. Both the prosecuting witness, who was first on the stand, and Ritchie himself, testified that there existed hostility between Ritchie and the appellant. On cross-examination counsel for appellant sought to develop the extent of this hostility, and the court having ruled against him, counsel made an offer to prove as follows:

'Mr. Brown: I offer to prove by this witness that two years or such a matter ago, and before the defendant went to California, the witness told Henry to 'lay off' of his girl, meaning the prosecutrix in this case; that he threatened to kill Henry in the presence of others over the Union pool hall at about the same time; that during the same period he became angry at Henry's attention to the prosecutrix, and while at a dance some words ensued, and he went outside and tried to borrow a gun to use on Henry; that subsequently to the trial of the case in December, and some time in December, 1925, on the street in Roslyn, he had an altercation with Henry and in substance threatened to kill him, and at a drinking party some time during the spring of 1926, about a month ago, he said that he would kill Henry if the jury acquitted him.

'Mr. McGuire: I object to the offer upon the ground that it is not proper to go into the hostility, because the hostility has already been shown.

'The Court: Sustain the objection.

'Mr. Brown: Does the court rule that I am limited to the bare fact of hostility?

'The Court: Yes.

'Mr. Brown: Can I show nothing as to the extent or degree of hostility?

'The Court: I will sustain the objection to your offer.

'Mr. Brown: I also offer to show by this witness that his hostility toward the defendant Henry reaches the point that he has threatened to kill him.

'Mr. McGuire: I object to the offer.

'The Court: Sustained.

'Mr. Brown: Exception.'

Appellant contends, and we think properly, that the general rule in such cases is that the inquiry is not strictly limited to the simple question of whether hostility exists, but that the witness may be interrogated as to particular facts tending to show the nature and extent of the hostility and cites Stossel v. Van de Vanter, 16 Wash. 9, 47 P. 221; State v. Griffin, 43 Wash. 591, 86 P. 951 11 Ann. Cas. 95; State v. Eaid, 55 Wash. 302, 104 P 275, 33 L. R. A. (N. S.) 946; and State v. Beaton, 106 Wash. 428, 180 P. 146, as supporting this view, which, in a general way, they may be said to do. But while we think the trial court might well have received the offered proof, still a reading of the whole record convinces us that the jury was well advised as to the nature and extent of the hostility of the witness. The prosecutrix had...