State v. Pearson

• Decision Date: 09 March 1905
• Citation: State v. Pearson, 37 Wash. 405, 79 P. 985 (Wash. 1905)
• Parties: STATE v. PEARSON.
• Court: Washington Supreme Court

79 P. 985

37 Wash. 405

STATE v. PEARSON.

Supreme Court of Washington

March 9, 1905

Appeal from Superior Court, Okanogan County; C. Victor Martin Judge.

James Pearson was convicted of cattle theft, and he appeals.Reversed.

G. V. Alexander, for appellant.

E. K Pendergast, for the State.

CROW J.

The appellant, James Pearson, was convicted of the crime of stealing cattle, was sentenced to a term of five years in the penitentiary, and appeals to this court.

Respondent presents a motion to strike the statement of facts for the reason that the same was not filed and served within the time required by law.The record shows that a proper extension of time for filing the statement had been obtained, and that the statement was filed and served within such extended time.The motion is therefore denied.A motion is also made to strike appellant's brief for the reason that the same was neither served nor filed within the time limited by law.The record, however, shows that it was served and filed within 90 days after the notice of appeal was given.The motion to strike the brief is denied, as is also a third motion made by respondent, to dismiss this appeal, which third motion is based on the two previous motions above mentioned.

An information was filed on August 26, 1903, against the appellant, James Pearson, and also against one William Wilson and one Lewis Haley, charging them with the crime of stealing 12 head of neat cattle.The appellant, James Pearson, was tried separately, and convicted.It appears from the record that one John Haley had previously been convicted in the superior court of Okanogan county, Wash., of the crime of stealing these same cattle; that he had been sentenced to a term of eight years in the penitentiary, and was serving said term at the time of the trial of appellant.Although John Haley had been tried on a separate information, nevertheless the crime for the commission of which he had been convicted was the same crime charged against appellant; the claim of the state being that the act of stealing was the joint act of John Haley and the parties charged in this action.On appellant's trial the said John Haley was presented as a witness for the state, having been brought from the penitentiary at Walla Walla for that purpose.Appellant objected to his competency as a witness, and moved the court to strike his testimony; basing his objection and motion on the fact that, as claimed by appellant, said John Haley was shown by his own evidence to be a self-confessed perjurer and guilty of the crime of perjury.On his examination in chief, Haley testified in part as follows: 'Q.What is your name?A.My name is John Haley.Q.And your age?A Twenty-four years of age.Q.Are you now confined in the penitentiary of this state?A.Yes, sir.Q.On a conviction of cattle stealing?A.Yes, sir.Q.What cattle?A. Tom Ellis' cattle.Q.This gentleman here, Thomas Eilis?[Indicating complaining witness.]A.Yes, sir.Q.Under what length of sentence are you?A.Eight years.Q.How long were you sentenced?A.Pretty near two years.Sentenced on the 25th of October, 1902.'On cross-examination he testified as follows: 'Q.Yousay you are serving a term in the State Penitentiary at this time, Mr. Haley?A.Yes, sir.Q.For what offense?A.For stealing those cattle.Q.For stealing the cattle named in this information?A.Yes, sir.Q.How long a term are you serving there?A.I am serving eight years.Q.Youwere brought up from the penitentiary as a witness in this case were you?A.Yes, sir.* * * Q. You testified at your own trial, did you?A.Yes, sir; I did.Q.And you denied, did you not, at that trial, that you had any connection with the stealing of these cattle?A.I did.Q.Or that you knew anything about the stealing of them?A.No; I didn't know anything about them at that time.Q. Didn't you deny that you had any connection or complicity with the stealing of these cattle?A.Yes, sir; I did.Q.Youwere under oath at that time?A.Yes, sir; I suppose so.I was on the stand.Q.Don't you know whether you were or not?A.I guess I was.I was on the stand.Q.Youwere under oath when you made that statement and testified, were you not?A.I suppose I was; yes.Q.Don't you remember whether you were sworn before you testified, or not?A.Yes, sir; I was sworn.Q.And all the testimony that you gave at that time, in which you denied all connection with these cattle and the stealing of them, you want the jury to believe at this time was false, do you?A.Yes, sir; I do.Q.And that you committed perjury at that time when you testified?(Objection sustained.)Q.Youtestified at that time, did you not, Mr. Haley, with reference to the facts involved in this case; that is, the stealing of these cattle?A.Well, I don't understand just what you are getting at now.Q.These are the same cattle that you were convicted of stealing, are they?A.Yes, sir; It is the same bunch of cattle.'

Section 5992, Ballinger's Ann. Codes & St. reads as follows: 'No person offered as a witness shall be excluded from giving evidence by reason of conviction of crime, but such conviction may be shown to affect his credibility: provided, that any person who shall have been convicted of the crime of perjury shall not be a competent witness in any case, unless such conviction shall have been reversed, or unless he shall have received a pardon.'Appellant objected to the competency of John Haley under this section, claiming that, although he had not been convicted of the crime of perjury, nevertheless he was shown by his own admissions to be a perjurer, and his testimony should be rejected.Appellant's objection was overruled by the trial court, and Haley's testimony was admitted.The learned counsel for appellant makes a very strong and forcible argument in favor of his contention that the witness Haley was incompetent under said section 5992; citing, with others, the following authorities: People v. Evans,40 N.Y. 1;Dunlop v. Patterson, 5 Cowan, 243;Williams v. Bishop(Colo. App.)68 P. 1063;3 Ency. of Evidence, p. 779.The case of People v. Evans, supra, seems to be the authority upon which appellant places the greatest reliance.But in that case the witness Near was practically the only witness produced against the defendant Evans, who was charged with the crime of subornation of perjury, in procuring Near to swear falsely on a material matter on the trial of a previous action.The prosecution depended solely on the testimony of Near, to show that perjury had been committed by himself in the previous action, and also that the defendant Evans had suborned him to commit such crime of perjury.There was no corroboration of Near's testimony on either of these two points.The trial judge refused to instruct the jury that they could not convict upon the uncorroborated testimony of Near that he had committed the perjury at the instigation of and by the inducement of the defendant Evans, and this was held to be error.We do not think the principle announced in that case would justify us in holding that John Haley was incompetent as a witness in the case at bar, simply because he made admissions which would make him guilty of the crime of perjury.Section 5992 applies only to a person who shall have been convicted of the crime of perjury, meaning undoubtedly a legal conviction upon trial in a court of record.We do not feel ourselves at liberty to read into the statute words not already there, so as to give it a construction which would not be otherwise authorized.The Legislature has not said that a witness is disqualified because he admits he has at a former trial sworn falsely as to the same circumstances constituting the subject-matter of his evidence, but it has said such disqualification must be based upon a conviction of the crime of perjury.We do not think the witness John Haley was disqualified under the statute, and the court did not err in admitting his testimony.

The appellant excepted to the trial court's refusal to give the jury the fifth instruction requested by appellant reading as follows: 'The witness John Haley, who has testified in this case, is an accomplice; and an accomplice is one who is associated with others in the commission of crime, all being principals.Haley has testified that he was associated with the defendant in stealing the cattle mentioned in the information, and that, in law, would make him an accomplice.The court instructs you that the testimony of an accomplice comes from a polluted source, and that, while the rule of law is that a defendant may be convicted on the uncorroborated testimony of an accomplice, where the honest judgment is satisfied beyond a reasonable doubt, still a jury should act upon such testimony with great care and caution, and subject it to a careful examination in the light of other evidence in the case; and the jury should not convict upon such testimony alone, unless, after a careful examination of it, they are satisfied beyond all reasonable doubt of its truth.In many, if not in most, cases, the evidence of an accomplice, uncorroborated in material matters, will not satisfy the honest judgment beyond a...