State v. Melson
| Citation | 186 Wash. 8,56 P.2d 710 |
| Decision Date | 16 April 1936 |
| Docket Number | 26002. |
| Parties | STATE v. WELSON. |
| Court | United States State Supreme Court of Washington |
Department 2.
Appeal from Superior Court, Spokane County; R. M. Webster, Judge.
C. H Melson was convicted of first-degree perjury, and he appeals.
Affirmed.
Ralph E. Foley, Carl P. Lang, and C. C. Quackenbush, all of Spokane, for appellant.
Gleeson & Gleeson, of Spokane, for the State.
The defendant was charged with the crime of first-degree perjury. The trial resulted in a verdict of guilty. Motions in arrest of judgment and for new trial being made and overruled, the defendant appealed from the judgment and sentence.
Nellie Gunderson died December 14, 1931, leaving what purported to be a last will and testament which in time was offered for probate. Subsequently, a contest of the will was instituted and resulted in a judgment to the effect that the testatrix' signature to the will was a forgery. The appellant was one of the witnesses to the will, and testified in support of it, to the effect that the testatrix signed it in his presence and in the presence of the other subscribing witness. There was an appeal from that judgment, which was sustained in the case of In re Gunderson's Estate, 174 Wash. 462, 24 P.2d 1070.
In the present action, the appellant was charged with swearing falsely in support of the will. Upon the trial, the state called the complaining witness in rebuttal, and he was permitted to testify, over objection, that the appellant would give him $500 if he 'would withdraw your charges of perjury.' It is said that this is error because it is evidence of a crime other than that for which the appellant was on trial and does not fall within any of the exceptions to the rule that such evidence cannot be submitted. That contention cannot be sustained because the rule sought to be invoked is not applicable. The rule here applicable is that a party's fraud or misconduct in the preparation or presentation of his case, such as the suppression or attempt to suppress evidence, can be shown against him as a circumstance tending to prove that his cause lacks truth and honesty. State v. Constantine, 48 Wash. 218, 93 P 317; State v. Arnold, 130 Wash. 370, 227 P. 505. There was no error in permitting the question to be answered.
It is next contended that it was error not to permit a witness called by the appellant to testify to declarations made by the testatrix subsequent to the execution of the purported will and while she was in the hospital seriously ill. The statement which was sought to be introduced was: 'I have everything fixed as I want it.' This was said in response to an inquiry as to whether the testatrix desired a friend of hers to be called. Upon the question as to whether declarations of this character may be introduced in evidence in support of the will, the authorities are not harmonious. Some courts hold that such declarations are not admissible except for the purpose of showing mental capacity; others that they may be offered for the purpose of showing that a will had been made. It is not necessary here to adopt either of these rules. It will be assumed, without so deciding, that the declaration could be received in support of the will if it were sufficiently definite to show that that was what the declarant had in mind. Here, the statement was only to the effect that: 'I have everything fixed as I want it.' This may have referred to a will, or it may have referred to the disposition of her property in some other manner. Whether it referred to the will, if she had made a will, or to something else, is purely conjectural, and for this reason it was properly rejected.
It is next contended that the deputy prosecuting attorney, in his opening argument to the jury, committed reversible error in stating: 'I do have an abiding conviction of my own as to the guilt of this defendant.' This was objected to, and the court promptly instructed the jury that the belief of counsel was not proper for their consideration. In explanation of the statement, the deputy prosecutor stated to the jury that he was basing it upon the evidence in the case. If the statement was based upon something other than the evidence in the case, it was improper argument. On the other hand, if it was based upon the evidence in the case, it was entirely proper....
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State v. Case
...Perry, supra; State v. McWhinney, 1945, 23 Wash.2d 334, 161 P.2d 162; State v. Wright, 1939, 199 Wash. 521, 92 P.2d 247; State v. Melson, 1936, 186 Wash. 8, 56 P.2d 710; State v. Stratton, 1932, 170 Wash. 666, 17 P.2d 621; State v. Johnson, 1918, 103 Wash. 59, 173 P. 723; State v. Meyerkamp......
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State v. Kosanke
... ... the conduct is that of a third person, Before the evidence is ... admissible it must be shown that such person was acting at ... the request of the accused, or that it was with his knowledge ... and consent, State v. Melson, 186 Wash. 8, 56 P.2d ... 710; People v. Roberts, 306 Ill. 240, 137 N.E. 802; ... Davis v. Commonwealth, 204 Ky. 601, 265 S.W. 10; ... Ryal v. State, 16 Okl.Cr. 266, 182 P. 253; State ... v. Zullig, 97 Or. 427, 190 P. 580; State v ... Stone, 111 Or. 227, 226 P. 430; ... ...
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State v. Leuch
...Bailey, 31 Wash. 89, 71 P. 715; State v. Meyerkamp, 82 Wash. 607, 144 P. 942; State v. Johnson, 103 Wash. 59, 173 P. 723; State v. Melson, 186 Wash. 8, 56 P.2d 710; v. Shay, 186 Wash. 154, 57 P.2d 401. We do not think the statement constituted such flagrant misconduct of counsel as to bring......
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State v. Clayton
...so, unless the misconduct was so flagrant that no instruction would cure it. State v. Meyerkamp, 82 Wash. 607, 144 P. 942; State v. Melson, 186 Wash. 8, 56 P.2d 710; v. Shay, 186 Wash. 154, 57 P.2d 401; State v. Leuch, 198 Wash. 331, 88 P.2d 440; State v. Perry, 24 Wash.2d 764, 167 P.2d 173......