State v. Miller

• Decision Date: 19 February 1913
• Citation: 72 Wash. 174,130 P. 356
• Court: Washington Supreme Court
• Parties: STATE v. MILLER.

130 P. 356

72 Wash. 174

STATE v. MILLER.

Supreme Court of Washington

February 19, 1913

Department 1. Appeal from Superior Court, Lincoln County; F. K. B Baske, Judge.

B. J Miller was convicted of unlawfully selling intoxicating liquor, and he appeals. Affirmed.

Martin & Wilson, of Davenport, for appellant.

James S. Freece and C. A. Pettijohn, both of Davenport, for the State.

PARKER J.

The defendant was convicted in the superior court for Lincoln county of selling intoxicating liquor in the city of Davenport, while that town was a unit within which the sale of intoxicating liquor was prohibited by virtue of an election held therein under the local option law. Laws 1909 p. 153; Rem. & Bal. Code, § 6292, and following. He has appealed to this court.

It is first contended by counsel for appellant that the local option law is unconstitutional and void, in that it constitutes an unwarranted delegation of legislative power to the electors of the various units defined by the law. This contention is fully answered in favor of the prosecution by our decision in State v. Donovan, 61 Wash. 209, 112 P. 260, and cases there cited.

It is contended that the court erred in excluding the offered testimony of the witness Kelly, as to the reputation for truth and veracity of the witness Butler, who had testified for the prosecution. This offered testimony was excluded upon the ground that the witness Kelly did not show himself qualified to testify as to the reputation of the witness Butler. Kelly testified concerning his knowledge of Butler as follows: 'Q. Do you know where this man lives, where he makes his home? A. I don't know where his home is. I know where he stopped in Spokane. Q. How long have you known him? A. Several days, while I was looking him up. Q. About how many days were you looking him up? A. Along about the first of the month up until the time he was arrested. Q. How many days? A. About seven days. * * * Q. And you were employed by some one to look him up, were you? A. I was asked by the sergeant of detectives to go out and look him up. * * * Q. How many people did you ask him about? A. Forty or fifty. * * * Q. This inquiry extended over a period of about seven days? A. Yes, sir. Q. And you asked these people what they knew about him, and from what they told you, after you made inquiry about him, as to where he was and what he was, you arrived at your conclusion as to his reputation? A. Yes, sir.' We are of the opinion that this does not show such an acquaintance with Butler's reputation as to qualify Kelly to testify relative thereto. In the text of 40 Cyc. at page 2630, it is said: 'A stranger sent out by one party to learn the character of a witness of the other party should not be permitted to testify as to the result of his inquiries.' This rule seems to be fully supported by the decisions. In the case of Curtis v. Fay, 37 Barb. (N. Y.) 64, 69, the court said: 'The witness Pritchard was not qualified to testify in relation to Jones' character or reputation. He did not know, himself, anything about Jones' reputation. All he could testify on the subject of his reputation was what some persons at Geneva, whom he did not know, told him it was. An impeaching or sustaining witness is not to speak of the reputation unless he knows it, and such knowledge must be founded upon an acquaintance and intercourse with the neighbors and acquaintances of the individual whose character is in question, and that intercourse must be of some length of time--sufficient, at least, to enable him to gather the general estimation in which he is held in the community where he resides.' Reid v. Reid, 17 N. J. Eq. 101; Clapp v. Engledow, 72 Tex. 252, 10 S.W. 462. Our decision in Bringgold v. Bringgold, 40 Wash. 121, 82 P. 179, is in harmony with this view.

The prosecution relied for conviction principally upon the testimony of two witnesses who, for the sake of argument, we may regard as detectives. Counsel for appellant requested the court to instruct the jury as follows: 'You are instructed that, if you find from the evidence that any detective or police officer has given testimony herein, under the law you are to weigh the testimony of such witnesses with great care and to closely scrutinize the same, owing to the nature of their business and the almost unavoidable tendency of such witness to overdraw their testimony.' The refusal to give this instruction is assigned as error. There might possibly be some ground for the giving of such an instruction in jurisdictions where the court may comment upon the facts though even in such jurisdictions we think that the giving of such an instruction would be within the discretion of the trial court, with which the appellate court would not interfere. Section 16, art. 4, of our Constitution, provides: 'Judges shall not charge juries with respect to matters of...