State v. Johnson

• Decision Date: 17 May 1962
• Docket Number: No. 35570,35570
• Citation: 60 Wn.2d 21,371 P.2d 611
• Parties: The STATE of Washington, Respondent, v. Robert L. JOHNSON, Appellant.
• Court: Washington Supreme Court

Page 21

60 Wn.2d 21

371 P.2d 611

The STATE of Washington, Respondent, v. Robert L. JOHNSON, Appellant.

No. 35570.

Supreme Court of Washington, En Banc.

May 17, 1962.

Harold J. Hall, Everett, for appellant.

Arnold R. Zempel, Pros. Atty., John W. Maxwell, Deputy Pros. Atty., Everett, for respondent.

WEAVER, Judge.

A jury having found defendant guilty of feloniously taking indecent liberties upon the person of a thirteen-year-old female not his wife, defendant appeals from the judgment, sentence and commitment to the state penitentiary.

Defendant's assignments of error present three issues: first, he was twice-placed in jeopardy for the same crime; second, the state placed his character in issue, although he did not take the stand to testify in his own defense; third, the court erred when it refused to admit in evidence defendant's written denial of improper relations with the prosecuting witness. The denial was made to a police officer seven days prior to his written confession.

August 17, 1959, defendant was charged in justice court, Everett precinct, Snohomish county, with contributing to the dependency and delinquency of a minor 'on or about the 23rd day of July, A.D., 1959, and continuously from July 22, 1959.' The allegations of the complaint are couched substantially in the terms of the statutes. RCW 13.04.010; RCW 13.04.170.

The record before us in no wise identifies the facts presented in justice court to support the complaint. The defendant was found guilty and sentenced to ninety days' confinement in the county jail.

November 6, 1959, defendant was charged by information, in the superior court of Snohomish county, with the crime of indecent liberties, allegedly taken upon the person of the same minor named in the justice court complaint. The charging portion of the information reads:

'That he, the said Robert L. Johnson, in the County of Snohomish, State of Washington, on or about the 22nd day of July, 1959, did then and there wilfully, unlawfully and feloniously take indecent liberties with and upon the person of one [name omitted] also known as [name omitted], a female person under the age of fifteen years, to-wit: of the age of thirteen years, the said [name omitted], not then and there being the wife of the said Robert L. Johnson, contrary to the form and the statute in such case made and provided and against the peace and dignity of the State of Washington.'

In short, the prosecuting witness testified: that she and defendant left her home at Oso in defendant's panel truck, about 3:30 a. m., July 22, 1959; that they planned to go to Oregon; that they stopped near Snohomish for about an hour; and that defendant had intercourse with the prosecuting witness several times.

Defendant's written confession was admitted in evidence. In it, defendant stated:

'I wish to correct my original statement that I gave on the 1 Oct 59 in that I did have intercourse with [name omitted] once, this was on the morning we left Oso 23 July 59. We stopped near a graveyard on the Everett-Snohomish Highway about four or four and one half miles east of Everett * * *.'

The only objection made to its admission was that a proper foundation had not been laid, to which no error is assigned.

Both prior and subsequent to trial, defense counsel timely presented the issue that defendant had been twice-placed in jeopardy for the same crime.

Double jeopardy exists if the offenses are identical or if the lesser offense can be said to be 'a constituent element jeopardy does not exist where a defendant State v. Campbell, 40 Wash. 480, 483, 82 P. 752 (1905). The offenses, however, must be identical in both law and fact. State v. Barton, 5 Wash.2d 234, 105 P.2d 63 (1940); State v. Kingsbury, 147 Wash. 426, 266 P. 174 (1928); see State v. Schoel, 54 Wash.2d 388, 341 P.2d 481 (1959). Double jeoperdy does not exist where a defendant stands charged with different offenses, even though they may arise out of the same act. State v. Boren, 42 Wash.2d 155, 164, 253 P.2d 939 (1953), and cases cited; see Ciucci v. Illinois, 356 U.S. 571, 78 S.Ct. 839, 2 L.Ed.2d 983 (1958).

A comparison of the statute defining the crime of contributing to the dependency and delinquency of a minor ¹ with the statute defining the crime of indecent liberties ² leads to the inescapable conclusion that the two specify distinct and separate crimes. Neither is necessarily 'a constituent element in the perpetration' of the other. For example: One might be guilty of contributing to the delinquency of a minor (see State v. Adams, 95 Wash. 189, 163 P. 403 (1917)) and not of the crime of indecent liberties.

The misdemeanor and the felony charged in the instant case are not identical in law; hence, defendant has not been in double jeopardy.

Defendant contends that he did not have a fair trial because the state placed his character in issue, although he did not take the stand to testify in his own behalf. His contention is based upon (a) certain testimony of the prosecuting witness; (b) certain testimony of the mother of the prosecuting witness; and (c) argument of the deputy prosecuting attorney.

We do not quarrel with defendant's contention, or the authorities cited, that he must be tried for the offense charged in the information; that evidence of other crimes is inadmissible unless it falls within the narrow corridor of certain exceptions we discuss later; that not having taken the stand, the state may not initially attack his character; and that he must have a fair trial. These rules of law, however, must be equated to the facts of the instant case.

A. Prosecuting Witness

The prosecuting witness, having previously stated that defendant had intercourse with her in Snohomish county, testified as follows:

'Q [by deputy prosecutor] The question is: Now, [name omitted] where did you spend the evening, the 22nd?

'A Up at Stevens Pass.

'Q Now, did you spend the night with the defendant?

'A Yes, I did.

'A And on this occasion, did you have sexual intercourse with defendant?

'A Yes, I did.'

Stevens Pass not being in Snohomish county, defendant argues that the quoted testimony was not admissible as it brands him with a crime not charged in the information.

We do not agree, for the questioned evidence was admissible.

In State v. Dinges, 48 Wash.2d 152, 154, 292 P.2d 361, 362 (1956), we said:

'A defendant must be tried for the offense charged in the indictment or information. To introduce evidence of an unrelated crime is grossly and erroneously prejudicial, unless the evidence of the unrelated crime is admissible to show motive, intent, the absence of accident or mistake, a common scheme or plan, or identity. These exceptions are not necessarily exclusive; * * *.'

The court extends a further safeguard to the defendant. In State v. Goebel, 36 Wash.2d 367, 379, 218 P.2d 300, 306 (1950), the court said:

'* * * we are of the opinion that this class of evidence [evidence of another crime], where not essential to the establishment of the state's case, should not be admitted, even though falling within the generally recognized exceptions to the rule of exclusion, when the trial court is convinced that its effect would be to generate heat instead of diffusing light, or, as is said in one of the law review articles above referred to [46 Harv.L.Rev. 954; 51 Harv.L.Rev. 988], where the minute peg of relevancy will be entirely obscured by the dirty linen hung upon it.'

The testimony of the prosecuting witness, to which defendant new objects, is relevant, for it tends to establish a common scheme or plan. Being a continuation of the crime charged, we cannot say that the 'minute peg of relevancy will be entirely obscured by the dirty linen hung upon it.'

Our conclusion that the evidence of a subsequent crime was admissible, under the facts of this case, is supported by the decisions of this court in State v. Crowder, 119 Wash. 450, 205 P. 850 (1922), and State v. Brown, 31 Wash.2d 475, 197 P.2d 590, 202 P.2d 461 (1948).

B. Mother of the Prosecuting Witness

While the mother of the prosecuting witness was testifying, the following occurred:

'Q (By Mr. Maxwell) Mrs. [name omitted], did Robert Johnson state to you that he was leaving on the 22nd of July, 1959?

'A The only thing he told me was that he was going to Everett. He was supposed to go in and see his parole officer.

'Mr. Hall: I move for a mis-trial right now, Your Honor. This lady has been volunteering information all along, and she has stepped over the line now, and she has prejudiced the rights of this defendant, and I don't feel he can get a fair trial under these circumstances.

'The Court. Ladies and Gentlemen of the Jury, you will disregard the last answer of the witness. (To Witness) And please, if you will, Mrs. [name omitted] try to answer the questions more directly instead of going ahead and giving a dissertation. Do you think you can do that?

'The Witness: I will try.

'Mr. Hall: I take exception, Your Honor, to the ruling. I don't feel this man can get a fair trial under these circumstances.

'The Court: I will reserve my ruling on that matter. Proceed counsel.' (Italics ours.)

Subsequently, the trial court denied the motion for a mistrial.

We consider the following: (a) the question asked was proper; (b) the answer was irresponsive, not elicited by any question of the prosecutor; (c) the answer was an uncalled-for observation of the witness; (d) the answer was a personal conclusion of the witness and did not purport to be a statement of defendant; (e) defense counsel made timely objection and motion for mistrial; (f) the court immediately instructed the jury to disregard the answer of the witness; (g) defendant, as was his constitutional right, did not take the stand to testify in his own behalf; (h) during the trial, no further reference was made to 'parole officer'; (i) misconduct of counsel is not involved.

In State v. Devlin, 145 Wash. 44, 46, 52 258 P. 826 (1927), this...