State v. Rackich
| Decision Date | 27 December 1911 |
| Parties | STATE v. RACKICH. |
| Court | Washington Supreme Court |
Department 1. Appeal from Superior Court, King County; John B. Yakey Judge.
John Rackich was convicted of selling intoxicating liquors to a half-blood Indian, and he appeals. Affirmed.
John H Allen, for appellant.
John F Murphy and Alfred H. Lundin, for the State.
The appellant was convicted of the crime of selling spirituous liquor to one Brown, an Indian of the half blood.
On the trial Brown was permitted to testify, over the objection of the appellant, as to his parentage, stating that his mother was a full-blooded Indian and that his father was a Portuguese. The appellant argues in this court that this evidence was inadmissible, being but hearsay, and consequently not the best evidence. But we think a person competent otherwise to be a witness, may testify as to his parentage. While no case has been cited us holding directly that a witness may so testify, analogous cases are numerous. For example, it was held in State v. Miller, 71 Kan. 200, 80 P. 51, that the prosecuting witness was competent to testify as to her own age, notwithstanding both of her parents were present and testifying to the same fact, and this is a case where the question of her exact age at a particular time was a material question at issue. To the same effect are the following cases: State v. McClain, 49 Kan. 730, 31 P. 790; Hill v. Eldridge, 126 Mass. 234; State v. Cain, 9 W. Va. 559; State v. Best, 108 N.C. 747, 12 S.E. 907; Loose v. State, 120 Wis. 115, 97 N.W. 526; 2 Jones on Evidence,§ 303.
So, also, a witness may testify as to the ages of other members of his family. 2 Jones on Evidence, § 303. The principle that permits a person to testify to his own age, or as to the ages of the different members of his family, will also permit him to testify as to his parentage. He acquires the knowledge of the one fact in the same manner that he does the other facts, and, while such evidence partakes somewhat of the character of hearsay evidence, it is admissible on grounds of public policy.
The appellant argues further that, since it was shown that the parents of the prosecuting witness were still living, they were the only persons competent to testify to the prosecuting witness' parentage, and that in consequence the evidence admitted was not the best evidence of which the case in its nature was susceptible. But the rule that permits a person to testify as to his parentage is not founded on the principle that it is substitutionary in its nature. On the contrary, it is of itself original evidence. It may be weaker than would be that of the parents themselves; but to permit the one to testify when the others are within call is not a substitution of evidence. It is no more than the selection of the weaker competent evidence instead of the stronger. To do this violates no rule of evidence. 1 Greenleaf on Evidence, § 82.
At the trial, and after the prosecuting witness had testified that...
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