State v. Lindsey

• Decision Date: 14 February 1947
• Docket Number: 30019.
• Citation: 177 P.2d 387,27 Wn.2d 186
• Parties: STATE v. LINDSEY.
• Court: Washington Supreme Court

177 P.2d 387

27 Wn.2d 186

STATE v. LINDSEY.

No. 30019.

Supreme Court of Washington

February 14, 1947

Department 1

Rehearing Granted April 1, 1947.

John Richard Lindsey was convicted of murder in the first degree and of first degree assault, and he appeals.

Reversed and remanded for new trial.

MALLERY C.J., dissenting.

Appeal from Superior Court, King County; Robert M. Jones, judge.

Ray R Greenwood and Roy A. Holland, both of Port Orchard, for appellant.

Lloyd Shorett and Duane T. Shinn, both of Seattle, for respondent.

ABEL Justice.

Defendant was found guilty by a jury of the crime of murder in the first degree, and of first degree assault committed by shooting the deceased and defendant's wife.

The first assignment of error pertains to the court's failure to give a requested instruction. However, there was no error in this, for the reason that the instruction was principally a restatement of the evidence submitted by defendant.

The second assignment of error is that the trial court overruled defendant's motion for a new trial. The ground of this assignment is because of the alleged misconduct of the deputy prosecuting attorney in his cross-examination of defendant. The direct and cross-examination of defendant concerning a prior conviction is as follows:

Direct Examination:

Q. Seventeen. You got into some trouble in Indiana, as I understand it. A. Yes.

'Q. And you were in prison for a time? A. I was in the reformatory in Indiana.

'Q. Reformatory. That was for an assault? A. Yes, sir.

'Q. And were you pardoned from that later on? A. I got a governor's parole.'

Cross-Examination:

'Q. (By Mr. Shinn) First let's talk about this conviction you had in Indiana. You admit you were convicted? A. I was.

'Q. It grew out of an attempted robbery, didn't it?

'Mr. Greenwood: Just a minute. Your Honor, I object. He can ask him if he was convicted of a certain crime, and I think that is the extent of it. He can answer yes or no, and I don't think Counsel is entitled to go further into it, unless he--I am confident he isn't, of this witness.

'Mr. Shinn: Your Honor, this case involves insanity, where you can go a whole lot further than you can in ordinary questioning regarding a conviction.

'Mr. Greenwood: It has nothing to do with insanity.

'The Court: You may ask him what he was convicted of, Mr. Shinn.

'Mr. Greenwood: Yes.

'Mr. Shinn: I know that is the usual rule, but I understood that in insanity that this man's life is an open book.

'Mr. Greenwood: No. The only purpose he can ask this question is to affect his credibility.

'The Court: I think you can inquire into what the offense was of which he was convicted.

'Q. (By Mr. Shinn) What was the offense regarding which you were convicted? A. I was convicted of assault and battery with intent to commit a felony and conspiracy of a felony.

'Q. What felony? A. Well, there was no felony. That was the charge.

'Q. Well, what was the felony? There was some felony involved.

'Mr. Greenwood: I object to any further questioning long that line. He had now answered the question. He could try that case all over if he could start in.

'Mr. Shinn: We have a right to know that felony it was, Your Honor.

'Mr. Greenwood: I don't know. You should have a certified copy of it.

'Mr. Shinn: That is not necessary and you know it.

'Mr. Greenwood: I don't know it. I know that it is, and if he is permitted to start along that line he could go on and on and try that all over again.

'The Court: No, we will----

'Mr. Greenwood: I think that the question is for one purpose only. It is a yes or no answer, he has been convicted of a felony, and further than that I object to any further questioning.

'The Court: Well, he may ask what is the felony.

'Mr. Greenwood: Yes. He asked that and it is answered.

'The Court: I don't think so. You may answer what the felony charge was that you were convicted of.

'The Witness: Well we were tried on--well, we were found convicted--found guilty of assault and battery with intent to commit a felony. It was alleged that we had robbed a man, but it wasn't proved.

'Q. (By Mr. Shinn) Well, we are not going into details about whether you were rightfully convicted or not.

'Mr. Greenwood: Well, never mind, now. He wasn't convicted of the charge of which he now speaks. 'What were you actually convicted of?' That is what the question is, I think.

'The Witness: We were convicted of assault and battery with intent to commit a felony and conspiracy to commit a felony. They run concurrent, they were both together.

'Q. (By Mr. Shinn) The felony was robbery, wasn't it?

'Mr. Greenwood: I object to that as----

'Q. Well, we were charged with robbery, but we weren't convicted of robbery.

'Q. (By Mr. Shinn) Well, what was the felony you were convicted of?

'Mr. Greenwood: Just a minute. He wasn't convicted of that, he says. I object to any further questions along this line. He was convicted----

'The Court: Sustained.

'Q. (By Mr. Shinn) Did anybody die as a result of that?

'Mr. Greenwood: Just a minute. I object to it and move the jury be instructed to disregard that question. Counsel knows how improper that is.

'The Court: Objection sustained. The jury will disregard the question.

'Q. (By Mr. Shinn) How much time did you serve in the reformatory as a result of that crime?

'Mr. Greenwood: Objected to as improper, and I think Counsel should now be instructed not to go further along this line.

'The Court: Well, the witness has spoken of that already, as to the time he was there. Objection overruled. A. I served a year and nine months. * * *

'Q. Now, having been convicted of a felony didn't you realize that it was against the law for you to possess a gun?

'Mr. Greenwood: Just a minute. I object to that as improper cross-examination, incompetent and immaterial.

'The Court: I will sustain it for another reason.

'Mr. Greenwood: The purpose of the question is plainly just to over-emphasize that point, and it is only admissible for one purpose.

'The Court: I have sustained the objection.

'Mr. Greenwood: Yes.

'Q. (By Mr. Shinn) Did you secure a permit to purchase or to carry a gun?

'Mr. Greenwood: The same objection.

'The Court: Objection overruled.

'Q. (By Mr. Shinn) Did you? A. No.

'Q. When you came to Seattle did you register with the police as an ex-convict?

'Mr. Greenwood: Oh, just a minute. If Your Honor please, now he is attempting to degrade this man.

'The Court: Objection sustained. The jury will disregard the question.' (Italics ours.)

The deputy prosecuting attorney stated that he knew what the usual rule was; however, he added, '* * * but I understood that in insanity that this man's life is an open book.'

After obtaining from the defendant the information that he had been convicted of a specific crime, the deputy prosecutor proceeded to ask the defendant:

(1) 'The felony was robbery wasn't it?' (2) 'Well, what was the felony you were convicted of?' (3) 'Did anybody die as a result of that?' (4) 'How much time did you serve in the reformatory as a result of that crime?' (5) 'Now, having been convicted of a felony, didn't you realize that it was against the law for you to possess a gun?' (6) 'When you came to Seattle, did you register with the police as an convict?'

Respondent justifies this cross-examination by citing the holding of this court in State v. Brames, 154 Wash. 304, 282 P. 48, and State v. Kelly , 187 Wash. 301, 60 P.2d 50.

In State v. Brames, supra, [154 Wash. 304, 282 P. 50] the defendants were charged on several counts with violations of the state liquor laws, and during cross-examination of one of the defendants, the following question was asked and answered: 'Q. From 1922 up to the present time, you have made your living selling intoxicating liquor? No sir, I don't make my living from liquor.' This court stated that this question was not prejudicial and made the following quotation from State v. Gleen, 135 Wash. 153, 237 P. 292: 'If it be conceded that the court erred in his ruling, it must be held that the error was without prejudice because the witness anwered in the negative.'

In the same case, State v. Brames, supra, this court stated as follows: 'Equally without merit is the assignment that the court erred in permitting the prosecuting attorney to cross-examine the appellants regarding the nature and details of prior convictions.'

Cross-examination regarding the nature and details of the prior convictions is not set out. However, the court quotes at length from the case of State v. Steele, 150 Wash. 466, 273 P. 742, 743. Referring to the latter case we find the following statement: 'In his cross-examination by the attorney for the state, the fact was elicited that he theretofore had been convicted of a crime. The state's attorney then questioned him as to the nature of the crime he had committed and the extent of the punishment that had been inflicted upon him.'

This court then adopted the principle that it was proper to show the nature of the offense of which the defendant was convicted and the extent of the punishment, for the reason that these matters were set forth in the judgment of conviction.

State v. Kelly, supra, was a case where the defendants were charged in different counts with the crime of forcible rape and with being personally present and aiding and abetting. While the crime was being committed, defendant stole some money from the prosecuting witness. On page 307 of 187 Wash., on page 53 of 60 P.2d, the court states as follows: 'Over objection evidence was permitted as to the taking of the $13 in money from the purse of Miss Johnson, which Floyd Kelly admitted that he had done. That crime was closely...