State v. Radoff

• Decision Date: 17 August 1926
• Docket Number: 20029.
• Citation: 140 Wash. 202,248 P. 405
• Parties: STATE v. RADOFF.
• Court: Washington Supreme Court

248 P. 405

140 Wash. 202

STATE v. RADOFF.

No. 20029.

Supreme Court of Washington, En Banc.

August 17, 1926

Appeal from Superior Court, Pacific County; Hewen, Judge.

Chris Radoff was found guilty of maintaining a joint, and he appeals. Reversed and remanded.

J. J Langenbach, of Raymond, and A. Emerson Cross, of Aberdeen for appellant.

A. D Gillies, of South Bend, and John I. O'Phelan, of Raymond for the State.

MACKINTOSH J.

The appellant, having been found guilty of maintaining a joint, is entitled to a new trial, for the reason that evidence of the general reputation of the place of business conducted by him was improperly admitted.

From the testimony it appears that the appellant himself was conducting business in the place which it is alleged was a joint, without the assistance of any one, and that all possession of intoxicating liquor, sale, or disposal of it, was had and made, if at all, by the appellant himself. The appellant admitted that he was the owner of the place and in the actual conduct of business there at all the times referred to in the action. Under such circumstances, to permit witnesses to testify to the general reputation of the place as being one where intoxicating liquor was sold was erroneous. The purpose of the admission in cases of this character of evidence of reputation is to establish the knowledge of the person being prosecuted of the character of the business being conducted. Evidence of reputation is, therefore, unnecessary in a case where an owner is on trial who is conducting the business unassisted by any agent or servant or employee. In such case, the general rule should apply that reputation which is hearsay evidence is not proof upon which a conviction can be had.

The Supreme Court of Kansas in State v. Brooks, 74 Kan. 175, 85 P. 1013, said this:

'After abundant evidence had been introduced to prove that the defendant's building had been used as a place where intoxicating liquors were sold in violation of law, the state was permitted over the defendant's objection to show that such illegal use was a matter of general reputation in the community, and this ruling is complained of as error. Of course the state could not have been permitted to show that the place in question was commonly reputed to be a liquor nuisance for the purpose of establishing that it was such in fact; but when sufficient proof had otherwise been made of its real character evidence that such character was a matter of public notoriety was competent, as bearing upon the probability of notice thereof having reached the defendant, who was engaged in business in a neighboring building.'

This court has already recognized the limitations surrounding the admissibility of reputation evidence in this class of cases, for in State v. Perrin, 127 Wash. 193, 220 P. 772, it is said:

'Over the objections of the appellants, the state introduced considerable testimony tending to show that, at or about the time mentioned in

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