State v. Morgan

• Decision Date: 09 December 1927
• Docket Number: 20804.
• Citation: 146 Wash. 109,261 P. 777
• Parties: STATE v. MORGAN.
• Court: Washington Supreme Court

261 P. 777

146 Wash. 109

STATE v. MORGAN.

No. 20804.

Supreme Court of Washington

December 9, 1927

Department 1.

Appeal from Superior Court, King County; Kinne, Judge.

Dan Morgan was convicted for carnally knowing his stepdaughter and the State appeals from an order granting a new trial. Order affirmed.

Ewing D. Colvin and R. L. Bartling, both of Seattle, for the state.

E. F Kienstra, of Seattle, for respondent.

MITCHELL, J.

By an information filed in the superior court, the defendant was charged with the crime of carnally knowing his stepdaughter 16 years of age. The jury found him guilty. Defendant's motion for a new trial was granted upon the grounds, as stated in the order, that error was committed in admitting testimony too remote of prior improper sexual relations between the defendant and his stepdaughter, and also in admitting evidence that the defendant had been informed against in another state for such prior improper relations and discharged after hearing. From the order granting a new trial, the state has appealed under section 2183-1, Laws Ex Sess. 1925, p. 423, § 7; section 2183-1, Rem. 1927 Supplement.

The order appealed from must be affirmed upon the second ground. The case in this respect is not one failing within the terms of section 2290, Rem. Comp. Stat., which provides that a person convicted of crime shall be a competent witness in any civil or criminal proceeding, but that his conviction may be proved for the purpose of affecting the weight of his testimony, but it is a case in which the prosecuting witness was permitted to testify in the state's case in chief that the defendant had been charged in another state, about three years ago, with sexual intercourse with her, and that 'we talked to the prosecuting attorney and his deputy and a lawyer and they dismissed the case from the court and said they would not do anything further,' and that they then left that state.

A similar situation arose in the case of State v. Arnold, 130 Wash. 370, 227 P. 505. The defendant in that case, upon testifying, was asked on cross-examination concerning prior charges against him of crime. In discussing the matter, this court said:

'Proving that one has been charged with a crime is not permissible under the statute quoted, nor is it admissible under any rule of law for the purpose of affecting the credibility of his testimony, because a perfectly innocent man may be so accused; nor can we say that this cross-examination was not prejudicial. When a jury is informed that the defendant has previously been accused by the prosecuting attorney of some offence, it is manifest that it may thereby be prejudiced.'

To the same effect, the opinion in that case quotes from State v. Strodemier, 40 Wash. 608, 82 P. 915.

Counsel for the state, however, say that the defendant did not object on this ground. But while the record is not as clear as it might be upon this point, it does show that the defendant had a general objection, recognized and allowed by the court to all testimony on the part of the prosecution as to transactions happening in another state, which we think was sufficient, if any objection at all were required, under the broad discretion and liberal powers a trial judge necessarily has in protecting one accused of crime in his right to a fair trial.

As to the remoteness of prior acts, this may become important or not according to the course taken in the new trial. As often happens in such cases, there was in this case testimony of many such acts in addition to the one for which the defendant was tried; all of which acts were denied by the defendant. The admissibility of testimony of prior acts and the purpose for such testimony in cases of this kind are well established and recognized in the law. As stated in State v. Fetterly, 33 Wash. 599, 74 P. 810, antecedent conduct or improper relations of the parties towards each other is admissible 'as tending to show the probability of the commission of the specific act charged, and as corroborative of the testimony of the prosecuting witness.' Also see State v. Workman, 66 Wash. 292, 119 P. 751; State v. Hanson. 133 Wash. 527, 234 P. 28.

Frequently the authorities in discussing the admissibility of such testimony limit it to acts 'not too remote in time or otherwise.' 16 C.J. 608, § 1194, and cases cited. The term seems incapable of exact application, and while, in a way, time is included within it, yet remoteness does not necessarily result from mere lapse of time. The surroundings and particular circumstances of the parties must be taken into consideration in the determination of such question. In United States v. Griego, 11 N.M. 392, 72 P. 20 cases are cited from other states holding that prior acts, though barred by the statute of limitations, are...