State v. Lunsford
| Citation | 300 P. 529,163 Wash. 199 |
| Decision Date | 24 June 1931 |
| Docket Number | 28878. |
| Parties | STATE v. LUNSFORD. |
| Court | United States State Supreme Court of Washington |
Appeal from Superior Court, Pacific County; H. W. B. Hewen, Judge.
Clyde Lunsford was convicted of second degree assault, and he appeals.
Reversed with instructions.
Welsh & Welsh, of Raymond, for appellant.
Herman Murray, of South Bend, for the State.
Clyde Lunsford was charged by information filed with the prosecuting attorney of Pacific county with the crime of second degree assault, alleged to have been committed upon one Elmer Pedersen. Defendant having pleaded not guilty, after a trial the jury disagreed and were discharged; upon a second trial held a few months later, the jury returned a verdict of guilty, and from judgment and sentence upon this verdict defendant appeals.
Appellant contends that the evidence does not support the verdict, and that for this reason his motion for a new trial should have been granted. While the evidence is directly in conflict, an examination of the record convinces us that a question of fact was presented upon which the jury was entitled to pass, and that it cannot be held as matter of law that upon the evidence the trial court should have ruled in appellant's favor.
Appellant assigns error upon the refusal of the trial court to permit Mrs. Martha Dennison, a witness offered on his behalf, to testify. When Mrs. Dennison was offered as a witness, it appeared that she had not been subpoenaed, and that her name had not been included upon the list of defendant's witnesses which had been furnished to the state, as provided by Rem. 1927 Supp. § 2050. This court, in the case of State v. Sickles, 144 Wash. 236, 257 P. 385, affirmed a judgment of the superior court granting a defendant in a criminal proceeding a new trial because of error committed by the trial court in refusing to allow witnesses, offered on behalf of the defendant, to testify for the reason that no list of the defendant's witnesses had been served upon the state. It appeared that the defendant had made a formal offer of proof as to what each witness offered on his behalf would testify, and also offered to show that the defense did not know of the witnesses until the night before the trial. In the case at bar, no offer of proof was made, nor was it shown when appellant decided that he would offer Mrs. Dennison as a witness on his behalf. In the case of State v. Adams, 144 Wash. 699, 257 P. 387, a companion case to that of State v. Sickles, supra, in a short per curiam opinion, a similar order to that from which the state appealed in the Sickles Case, entered by the same judge upon approximately the same state of facts, was affirmed. In the Adams Case, however, this court refers to the fact that no offer of proof had been made, and that there had been no showing as to the reason why a list of witnesses was not furnished. From the opinion in the latter case, it appears that the trial court failed to exercise his discretion in refusing to allow the defendant's witnesses to be sworn, but relied strictly upon the statute, and the order appealed from was therefore affirmed.
Upon such a situation arising as that now under discussion, an offer of proof should be made, stating briefly the substance of the testimony which will be given by the witness whose testimony is desired. There is nothing in the record before us from which it can be determined that Mrs. Dennison would have testified to any facts material to the issues, or that her testimony would have been admissible in evidence. In the Sickles and Adams Cases, above cited, the respective defendants were not allowed to introduce any testimony whatever, save their own. In the case at bar, appellant presented much testimony on his behalf, and an entirely different question is presented upon the assignment of error now under discussion. It is a very simple thing for a defendant to make a statement by way of an offer of proof, embodying the substance of what he believes will be the testimony of a witness offered on his behalf. To hold that upon this matter the action of the trial court constituted reversible error might result in a ridiculous situation if, after reversal of the judgment of guilty, upon the case once more coming on for trial, it should appear that the witness, whose testimony was desired by defendant, could give no testimony which was pertinent or which, under the law, was admissible. Because of the failure of appellant to make any offer of proof as to the facts concerning which Mrs. Dennison would testify, we find no reversible error in the ruling of the trial court refusing to allow the witness to be sworn.
Appellant called as a witness on his behalf Mrs. Agnes Darnell, who testified that she had for three years lived just across the street from appellant's home, and that she was well acquainted with him. The prosecuting witness had testified that appellant had stabbed him with a knife, and in the course of the examination of Mrs. Darnell, appellant's counsel propounded to her the following question: 'Do you know of your own knowledge whether or not Clyde Lunsford owned or carried a knife immediately prior to May 25, 1929?' To this question the prosecution interposed an objection, which was by the court sustained. Appellant assigns error upon this ruling, and cites authorities which he contends support his position. We find no error in the ruling complained of, and the authorities cited by appellant are not in point. Appellant himself testified fully concerning this matter, and the offered testimony on the part of a neighbor constituted mere negative evidence of the vaguest sort. The rule laid down in Wharton's Criminal Evidence (10th Ed.), page 1748, and in 16 Corpus Juris, page 562, section 1091, relied upon by appellant, is not controlling upon the question here presented.
Appellant next assigns error upon the refusal of the trial court to permit the reading to the jury of the testimony of one John Bannish, a witness on behalf of appel...
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State v. DeSantiago
...ER 804(b)(1) does state that the use of former testimony "has been limited to proceedings on the same charge," citing State v. Lunsford, 163 Wash. 199, 300 P. 529 (1931). However, the facts in Lunsford do not support this proposition because no charges were added in Lunsford's second trial.......
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State v. Ortego, 29374.
...§ 2306. This court held that the claim of error assigned by the accused appellant was not well grounded. Again, in State v. Lunsford, 163 Wash. 199, 300 P. 529, this court held that when a witness at a former trial after diligent search, be found, a duly certified transcript of his testimon......
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State v. Thomas, 28106.
... ... erred in refusing to permit her to testify. Before we examine ... appellant's offer however, we wish to call attention to ... another en banc decision of this court (with only one judge ... dissenting), State v. Lunsford, 163 Wash. 199, 300 ... P.2d 529, 530, as we think it will serve to circumscribe ... further the question under consideration ... In that ... case, the defendant called as a witness a woman who had been ... subpoenaed but had not been included in the list ... ...
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State v. Ruzzo
...of what sentence the court may impose following a verdict of guilty. State v. Bell, 206 Iowa 816, 221 N.W. 521; State v. Lunsford, 163 Wash. 199, 300 P. 529; State v. Vasquez 16 Nev. 42; Russell v. State, 57 Ga. 420; State v. Overton, 85 N.J.L. 287, 88 A. In the event that the trial justice......