State v. Russell

• Decision Date: 01 August 1963
• Docket Number: No. 36455,36455
• Citation: 384 P.2d 334,62 Wn.2d 635
• Court: Washington Supreme Court
• Parties: STATE of Washington, Respondent, v. Raymond RUSSELL and Terry Marie Tully, Appellants.

Page 635

62 Wn.2d 635

384 P.2d 334

STATE of Washington, Respondent, v. Raymond RUSSELL and Terry Marie Tully, Appellants.

No. 36455.

Supreme Court of Washington, Department 1.

Aug. 1, 1963.

Rehearing Denied Sept. 20, 1963.

Selander, Clark, Leavitt & Chantry, Seattle, for appellants.

Charles O. Carroll, Pros. Atty., David R. LaRose, Jerry A. Sovereign, Seattle, for respondent.

HILL, Judge.

The defendant, Raymond Glenn Russell, appeals from a judgment entered on a verdict of guilty of second-degree burglary and of grand larceny. Both charges arose out of the same transaction, and there is no claim that the evidence is not sufficient to sustain the convictions. Each assignment of error relates to the trial court's refusal to grant a mistrial because of testimony by the state's witness, Judy Ann Dreher.

There were three alleged participants in the actual burglary, and Russell's alleged complicity is predicated upon the state's claim that he assisted in planning the crime and agreed to purchase some of the loot. One of the participants testified for the state, one was unavailable for trial; and Russell and Terry Morie Tully, one of the alleged participants, were the defendants who went to trial.

The position of the defense was that the witness Dreher was Russell's 'jilted paramour,' and that her testimony epitomized the truth of Congreve's perspicacious phrase:

'Heaven has no rage like love to hatred turned,

'Nor hell a fury like a woman scorned.'

The first motion for a mistrial was prompted by her statement, on direct examination, that Russell offered her $40 to leave town so she would not be available as a witness.

Trial counsel moved for a new trial, stating:

'* * * this has already been tried out. Mr. Russell was charged with tampering with a witness and acquitted in justice court on this same testimony. I think it's prejudicial here.'

After hearing counsel further, in the absence of the jury, the trial court denied the mistrial stating:

'Normally, of course, a defendant is tried only upon the charges made against him and the issue before the court.

Other crimes unrelated are almost universally considered as prejudicial. However, the remark which the witness Dreher states the Defendant Russell made, 'He offered to give me forty dollars if I would leave town,' was made allegedly in connection with the crime here charged and is certainly relevant, it seems to me, if it were stated to the issue of criminal intent, a necessary element of the crimes charged.

'I can see that it is prejudicial but admissible. I will deny the motion, but exception allowed.'

The trial court ruled correctly. Although the general rule is that evidence of an offense wholly independent of the one charged is inadmissible, there are a number of well-established exceptions. As we stated in State v. Dinges (1956), 48 Wash.2d 152, 154, 292 P.2d 361, 362, the test of admissibility is whether the evidence of another criminal offense is relevant and necessary to prove an essential ingredient of the crime charged.

Evidence of an attempt to bribe a witness is admissible as a circumstance showing a consciousness of guilt. State v. Lew (1946), 26 Wash.2d 394, 174 P.2d 291; Barcott v. United States (C.A. 9th, 1948), 169 F.2d 929; 20 Am.Jur. Evidence §§ 284, 288 (1939).

The fact of acquittal of the criminal offense of which evidence is offered, does not affect its admissibility but goes only to its weight. People v. Simms (1956), 144 Cal.App.2d 189, 300 P.2d 898; People v. Raleigh ¹ (1948), 83 Cal.App.2d 435, 189 P.2d 70; 1 Wharton, Criminal Evidence § 246 (12th ed. 1955).

Russell, in his brief, concedes that the preponderance of authority supports the admissibility of the questioned testimony, but contends that a contrary result was reached in United States v. Haynes (W.D.Pa.1948), 81 F.Supp. 63, and urges that we adopt the rule as stated therein.

We do not find the Haynes case to be apropos. An issue in that case was the rule to be applied to impeachment of a defendant for the purpose of affecting credibility. We have consistently held a conviction of a crime is the only thing that is pertinent, and arrests, charge, and accusations are not admissible for that purpose. State v. Emerson (1958), 53 Wash.2d 319, 333 P.2d 665.

While the ruling of the trial court on the motion for mistrial was entirely proper at the time it was made, it should be noted that on cross-examination the witness Dreher completely repudiated her testimony on direct examination and admitted that she had asked Russell for $40 to go to California, in an attempt to get him to make such an offer. A motion to strike her testimony to the contrary on direct, or to instruct the jury to disregard it, might well have been granted. Counsel did not make such a motion, probably feeling that her testimony on that issue had been completely discredited.

The second motion for a mistrial was based on the testimony of the same witness: That the defendant had stolen goods in his possession, having reference to articles other than those secured in the burglary. The witness was being cross-examined by couns...