State v. Lynch

• Decision Date: 06 February 1934
• Docket Number: 24831.
• Citation: 176 Wash. 349,29 P.2d 393
• Parties: STATE v. LYNCH.
• Court: Washington Supreme Court

29 P.2d 393

176 Wash. 349

STATE v. LYNCH.

No. 24831.

Supreme Court of Washington

February 6, 1934

Department 1.

Appeal from Superior Court, Pierce County; E. M. Card, Judge.

Samuel S. Lynch was convicted or robbery, and he appeals.

Affirmed.

Henry Clay Agnew, of Seattle, for appellant.

Bertil E. Johnson, Byron D. Scott, and Hilton B. Gardner, all of Tacoma, for the State.

STEINERT Justice.

This case presents an appeal from a conviction of robbery.

On Saturday, March 26, 1932, between 9:30 and 10 o'clock in the forenoon, a lone bandit executed a robbery at the office of the Railway Express Agency, a corporation in Tacoma, securing $83.90 of the company's money. The robber proceeded according to the conventional form of engaging the employee and sole occupant in charge of the company's office, in an ostensible business transaction and then at the opportune moment covering him with a revolver and forcibly rifling the contents of the cash drawer, the employee being compelled to lie, face downward, on the floor behind the counter during the operation. While the robbery was in progress, a messenger boy, nineteen years of age, came into the office and was likewise forcibly compelled by the robber to lie down on the floor behind the counter. After emptying the cash drawer and making a search of the safe, the robber herded and locked the employee and the messenger boy in a lavatory in the rear of the office and quickly made his escape. The bandit wore no mask during the proceeding. Shortly thereafter a customer came into the office and discovering what had occurred, secured the release of the two men imprisoned in the lavatory. Two days later the company's employee and the messenger boy, upon being shown a number of photographs by the Tacoma police, identified the appellant as the robber. On the same day, they went to Seattle where they readily picked the appellant from a line of suspects under arrest and in jail in that city, and identified him as the robber. At the trial, the appellant was again identified by the two witnesses to the crime. The record discloses that the identification was voluntary, positive, and unequivocal.

There are five assignments of error. The first is upon the exclusion of certain evidence offered by appellant. One Anderson, a cousin of appellant, was called as a witness for the defense, and on direct examination testified that he and the appellant had been arrested in Seattle on the day following the robbery, on suspicion of their connection with a post office robbery in that city. The witness was further permitted to testify on direct examination that he had never been convicted of a crime, nor ever arrested Before . Asked by appellant's counsel whether the men guilty of the post office robbery had ever been convicted, the witness was precluded from answering by an objection to the question interposed by the state and sustained by the court. Error is assigned upon that ruling.

The inquiry was clearly immaterial and wholly collateral to the issue involved in the instant case. There was no evidence, direct or from which any inference could reasonably be drawn, that either the appellant or the witness was implicated in the post office robbery. There was no error in the ruling.

The second assignment of error is based upon the refusal of the court to receive evidence to the effect that upon their arrest in Seattle the appellant and his witness Anderson had made full disclosure to the police of their whereabouts on the morning of the robbery. The purpose of the offer was to reinforce the credence to be given to appellant's alibi, on the theory that the story told by appellant and his witness on March 27, 1932, was the same as that told upon the trial a year later, and hence was not one of recent fabrication. The ruling of the court excluding the evidence was made Before any cross-examination of the witness had taken place, and at a time when no effort to impeach the witness had been made.

A witness may not fortify his testimony or magnify it weight by showing that he has previously told the same story on another occasion out of court. If a witness were permitted to do that, then garrulity would supply veracity. Such evidence is immaterial and incompetent unless and until there is an attempt by the adverse party to show that the witness has made prior inconsistent statements or that his present story is one of recent fabrication. State v. Braniff, 105 Wash. 327, 177 P. 801; State v. Spadoni, 137 Wash. 684, 243 P. 854; Russell v. Cavelero, 139 Wash. 177, 246 P. 25; Dunn v. Buschmann, 169 Wash. 395, 13 P.2d 69; Kesselring v. Hummer, 130 Iowa, 145, 106 N.W. 501; 2 Wigmore on Evidence (2d Ed.) § 1124. There was no error in the court's ruling upon this phase of the case.

The third assignment of error is based upon a ruling of the court which permitted the state to ask appellant's witnesses on cross-examination, whether they had not testified for appellant in support of an alibi in a former criminal action. Appellant concedes that it was proper to interrogate the witnesses as to...