State v. Kellogg
Decision Date | 28 June 1916 |
Citation | 158 P. 344,91 Wash. 665 |
Parties | STATE v. KELLOGG. |
Court | Washington Supreme Court |
Appeal from Superior Court, King County; Everett Smith, Judge.
William H. Kellogg was convicted of seduction, and he appeals. Reversed, and remanded for new trial.
William A. Greene, C. L. Henry, and R. L. Blewett, all of Seattle for appellant.
Alfred H. Lundin and Erven H. Palmer, both of Seattle, for the State.
Appellant was prosecuted and convicted in the superior court of the crime of seduction. It was charged that he did, on or about July 24, 1912, seduce and debauch one G. M., a female of previously chaste character. Two errors are alleged, only one of which we believe entitled to consideration.
In his defense appellant called a young man as a witness for the purpose of proving that G. M., the prosecuting witness, was not of chaste character previous to July 24, 1912, and for the further purpose of contradicting the testimony of the prosecuting witness that, previous to the date laid in the information, she had never had sexual intercourse with any man other than the appellant after his seductive arts and promises; and of her brother, to the effect that he never saw any act of intercourse between the prosecuting witness and the witness in question during the months of July or August 1912. Upon being placed on the witness stand and examined by appellant's counsel, the young man testified that, during the summer of 1912, until July 31st, he lived in the vicinity of the residence of the prosecuting witness on Vashon Island that at some time while there living, he had 'attempted to have sexual intercourse with her.' He was then asked to tell the jury what he did. To this an objection was sustained, the trial judge remarking, 'If he did not succeed, then it is immaterial.' After some colloquy, the jury were excused, and the state's attorney was permitted to ask the witness, 'Did you or did you not have sexual intercourse with G. M. prior to September 3, 1912?' to which he answered, 'I did not.' Counsel were informed that they would not be permitted to interrogate or cross-examine the witness further, as it would tend to degrade the young man, and because he was appellant's own witness, and that it was an attempt to impeach his own witness. Counsel for appellant offered to prove that the witness had made a statement to them tending to show that the act of the witness to which he referred was in fact such an act as comes within the legal definition of sexual intercourse, and that they were surprised by his testimony, and therefore entitled to cross-examine him as to his variant statements and to contradict him by proof of such statements. The offer was denied. The rule is now well settled in a majority of jurisdictions that, while a party producing a witness vouches for his character and general credibility, and may not, however greatly surprised by his testimony, impeach his character, nevertheless, when the party is surprised and prejudiced by the unexpected testimony in respect to material facts, the party calling him may interrogate him as to former variant statements , and impeach in a proper case by proof of variant statements (same, 28-31). And this court has said:
'The better rule undoubtedly is that a party who has been surprised at the unfavorable testimony of a witness he has called in his own behalf may ask such witness whether he has not made contradictory statements at other times and places, and, if the witness denies it, show by other evidence that he has made such statements. * * *' State Bank v. Spokane, etc., R. & Nav. Co., 53 Wash. 528, 102 P. 414.
In the first place, the witness having testified that at the time in question he had 'attempted to have sexual intercourse with the girl,' appellant had an undoubted right, under all the rules of evidence, to ask him what he did. That was only asking for the detailed facts. If, then, his testimony was surprising and unfavorable to appellant, and at variance with previous statements made by him in regard thereto, appellant has the right to show, by him if possible, such contradictory statements, which, however, the witness would have the right to explain. If he denied having made any such variant statements or of having any recollection thereof, under the now well-settled rule appellant had the right, by preliminary questions, to 'lay the proper foundation' for introducing contradictory evidence by interrogating him as to the time, place, and circumstances, and the substance of such contradictory statements. All of the testimony would then be for the jury to weigh. In 2 Wigmore on Evidence it is said:
The previous chastity of the prosecuting witness was one of the important essentials of the case. It is true that another male witness testified to an act of intercourse with the prosecuting witness previous to her alleged seduction by appellant. The jury may, however, have utterly disbelieved this witness, and may have believed, in whole or in part, the testimony of the witness whose rejected testimony is now under consideration, or the evidence of his former variant statement, as to either of which they should have been the sole judges. Upon an issue of chastity it is competent and material to prove previous acts of lewdness or unchastity. 7 Enc. Evidence, 51; Davis v. State, 36 Tex. Cr. R. 548, 38 S.W. 174.
Nor was the testimony of the witness...
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State v. Matlock
...Delaney, 161 Wash. 614, 297 P. 208; State v. Bossio, 136 Wash. 232, 239 P. 553; Ferris v. Todd, 124 Wash. 643, 215 P. 54; State v. Kellogg, 91 Wash. 665, 158 P. 344; State v. Catsampas, 62 Wash. 70, 112 P. 1116; State v. Simmons, 52 Wash. 132, 100 P. In the instant case, San Pierre did not ......
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State v. Bossio
... ... Wash. 237] The authorities cited by the respondent cannot be ... said to sustain the ruling in permitting the testimony of the ... two witnesses given upon a prior trial to be read to them in ... the presence of the jury. In the case of State v ... Kellogg, 91 Wash. 665, 158 P. 344, there was surprise ... which does not exist in the present case. In addition to ... that, the case was heard en banc and the majority opinion ... only has the support of three judges, three others concurring ... in the result upon a special ground ... ...
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State v. Thomas, 27565.
... ... by prior contradictory statements. The situation was not an ... illustration of a mere failure to give beneficial testimony, ... but rather one of giving adverse and prejudicial testimony. * ... * *' See also State v. Kellogg, 91 Wash. 665, ... 158 P. 344 ... Appellant's ... final assignment of error is based upon the reception of the ... testimony of one of the physicians, Dr. Kennedy, who ... testified in respect to the child's physical condition ... No objection was ... ...
- State v. Bogart, 29356.