State v. Hosey
| Decision Date | 29 July 1909 |
| Citation | 103 P. 12,54 Wash. 309 |
| Parties | STATE v. HOSEY. |
| Court | Washington Supreme Court |
Department 2. Appeal from Superior Court, Spokane County; Wm. A. Huneke Judge.
P. C Hosey was convicted of crime, and he appeals. Reversed.
Lester P. Edge and Joseph McCarthy, for appellant.
Fred C Pugh, Don F. Kiser, and Chas. G. Cromwell, for the State.
The information in this case charged the appellant with statutory rape upon one Elta Decker, a female child of the age of 15 years. Trial was had to a jury, and a verdict of guilty as charged was rendered. Motion for a new trial was overruled and the appellant was sentenced to imprisonment in the state penitentiary at Walla Walla for a term of six years. From a judgment of conviction this appeal is taken.
It is assigned that the court erred in excluding the testimony of B. D. McDonald and of Austin Ready, in refusing to give certain instructions, and in permitting the prosecuting attorney, over the objection of defendant after the trial had commenced, to indorse upon the information the name of Briley as one of the witnesses for the state, and allowing Briley to testify during the trial. For the purpose of proving the good character of the appellant the witness McDonald was called. The appellant had resided with the witness McDonald and his family for the greater part of the year preceding the trial. On direct examination McDonald testified that he knew what appellant's general reputation was for good citizenship and chastity, and that the same was good. On cross-examination the witness testified as follows: The court instructed the jury that the testimony of Mr. McDonald should not be regarded by them, and it was thereby taken from their consideration. Mr. Ready, a prominent citizen of Spokane, testified that he had known the appellant in Spokane and other places for a period of 12 or 15 years; that he had frequently seen him and talked with him in Spokane; that he had talked to Mr. McDonald about him, and that they were much impressed with him. Being asked by counsel, 'Had he [appellant] been an immoral man would you have known it?' the state interposed an objection, which was sustained by the court. Under the old rule it may be conceded that the testimony of these witnesses, especially of the witness McDonald, would not have been considered material, but that strict rule has been very much relaxed, and we think with good reason; for reputation such as was proved under the old rule was only what a certain given number of people thought about a man, and was but an enlargement in numbers of what one man thought or knew about him, and there seems to be no good reason why the opinion and knowledge of the one man should be excluded because he is not able to duplicate that opinion by giving the names of others who have expressed their opinion as to his reputation.
It is said in 3 Enc. of Evidence, p. 43: 'By the great weight of current authority one who has been personally acquainted with another for a considerable length of time, and who has been in a position where he has probably heard that personal reputation talked about and a subject of comment, and has never heard it questioned, may testify to the good character of such a person'--citing many cases to sustain the text among others Foerster v. United States, 116 F. 860, 54 C. C. A. 210, where it was held that the fact that one, who has long been acquainted with a witness and his associates, has never heard any discussion or remarks concerning his character is excellent evidence of his good character and good reputation, and that the testimony that one's reputation for truth and veracity is good is not rendered incompetent by the statement of the witness on cross-examination that it had never been brought up to him before, the trial court in passing on the opjection to the testimony saying: 'A person where reputation is good is never discussed; but a man whose reputation is bad is descussed among others.' The appellate court held that this was a proper ruling by the trial court, saying: ...
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State v. Barretta
... ... N.E. 718, 22 L. R. A. (N. S.) 650, 12 Ann. Cas. 745; ... State v. Grate, 68 Mo. 22. And that is the ... current and modern authority ... A case ... much in point, and where it was held error to strike ... testimony similar to that stricken here, is that of ... State v. Hosey, 54 Wash. 309, 103 P. 12, 22 ... L. R. A. (N. S.) 670. We quote further from ... Flemister v. State, supra: ... "Where a witness testified that she knew the general ... character of another witness, that she had never heard any ... one say anything against it, and that she knew ... ...
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State v. Thomas
...of his claim that he did not commit the crime and his character was the only defense he could present to the jury. See State v. Hosey, 54 Wash. 309, 103 P. 12 (1909). Character evidence is highly relevant where, as here, the defendant denies having committed the crime and the State's case i......
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State v. Axelson, 31416.
... ... testimony will be stricken and the jury instructed to ... disregard it ... 'Mr. Orloff: ... You mean the entire testimony, Your Honor? ... 'The Court: ... That's correct.' ... In State v ... Hosey, 54 Wash. 309, 103 P. 12, the court quoted the ... following excerpts, with approval: ... "By the great ... weight of current authority, one who has been personally ... acquainted with another for a considerable length of time and ... who has been in a position ... ...