State v. Phillips

• Decision Date: 06 January 1927
• Docket Number: 20058.
• Citation: 141 Wash. 648,251 P. 864
• Parties: STATE v. PHILLIPS.
• Court: Washington Supreme Court

251 P. 864

141 Wash. 648

STATE v. PHILLIPS.

No. 20058.

Supreme Court of Washington

January 6, 1927

Department 1.

Appeal from Superior Court, Wahkiakum County; Herven, Judge.

Stanley Phillips was convicted of selling intoxicating liquor, and he appeals. Reversed and remanded, with directions.

Norblad & Hesse, of Astoria, Or., for appellant.

George F. Hanigan, of Cathlamet, for the State.

MITCHELL J.

The appellant was convicted of the crime of selling intoxicating liquor, and from a judgment and sentence of the court on the verdict this appeal is prosecuted.

It was alleged that the crime was committed on May 26, 1925. At the trial the state called one Walter Kelly as a witness. It soon developed that he was evasive; indeed, the prosecuting attorney claimed and the trial court was satisfied that the witness was hostile. Thereupon, and over the objections of the appellant the state was allowed to ask the witness leading questions for the avowed purpose of impeachment. Among them were the following questions, together with answers:

'Q. Mr. Kelly, did you not state in the presence of Mr Frederickson, Mr. Stuart, Mr. McNath and myself, an evening or two after the 26th of May, 1925, at my office in the courthouse, did you not state that upon May 26th you purchased liquor, moonshine liquor, from Mr Phillips, the defendant, or words to that effect? A. No.

'Q. Did you not state at that time, and in the presence of the same witnesses, that you paid $4 for the bottle of moonshine? A. No, sir, I did not.'

Other similar questions were asked, to each of which a negative answer was given. Then Mr. Stuart was called on behalf of the state, and, over objections made by the appellant, was permitted to testify that at the time and place mentioned Mr Kelly did make each of the statements attributed to him in the state's questions. Another witness named Foster called by the state, and who made similar answers to the same kind of questions, was allowed to be impeached in the same way, over objections of the appellant. Neither Mr. Kelly nor Mr. Foster gave any affirmative testimony inconsistent with their negative answers upon which the impeachment rests. If the jury believed the testimony of the impeaching witness Stuart that the contradictory prior statements attributed to Kelly and Foster were made by them, it would not establish the fact that Kelly or Foster had purchased moonshine liquor from the appellant, nor that either or both of them paid $4 or any other amount for a bottle of it. The only purpose served by Stuart's testimony was to enable the jury to get the naked declarations of Kelly and Foster before the jury. It was pure hearsay. Its character as such cannot be disguised by calling it impeachment on as being either permissible or necessary in order to overcome the discomfiture of the prosecuting attorney.

Without reviewing the authorities, it may be said:

'The rule is that, where a party calling a witness is taken by surprise by reason of affirmative testimony prejudicial to the interest of the

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