State v. Rutledge

• Decision Date: 21 March 1905
• Citation: 79 P. 1123,37 Wash. 523
• Parties: STATE v. RUTLEDGE.
• Court: Washington Supreme Court

79 P. 1123

37 Wash. 523

STATE v. RUTLEDGE.

Supreme Court of Washington

March 21, 1905

Appeal from Superior Court, Spokane County; William E. Richardson Judge.

Frank Rutledge was convicted of perjury, and he appeals. Reversed.

Robertson, Miller & Rosenhaupt, for appellant.

Horace Kimball and R. M. Barnhart, for the State.

RUDKIN J.

About 9 o'clock on the evening of April 4, 1903, one Miller was assaulted and robbed by three masked men in his butcher shop in the city of Spokane. An information was filed in the superior court of Spokane county against Frank Fair and Sam Eder, charging them with the commission of said crime. At the trial of Fair the defendant Rutledge was a witness in his behalf and as such witness testified that he was in the town of Prosser, 186 miles from the city of Spokane, on the 4th day of April, 1903, and the he saw Fair in said town of Prosser on the evening of said day between the hours of 9 and 10 o'clock. Thereafter an information was filed in the same court against the defendant Rutledge, charging him with the crime of perjury, the perjury being assigned upon the testimony above set forth. The defendant was convicted, and from the judgment and sentence of the court this appeal is taken.

Numerous errors are assigned on the rulings of the court sustaining objections to questions propounded to several of the jurors on their voir dire examination. The state insists that these rulings, with one or two minor exceptions, are not properly before us for review, and inasmuch as the same questions may not arise on another trial, we will not consider them on this appeal. Numerous requests for instructions were also made by the appellant and refused by the court. Some of these requests might properly have been granted; others were argumentative in form, and were properly denied. We think, however, that the law of the case was sufficiently covered in the general charge of the court, except in one particular, to be hereafter noted. On the trial of the case the court, over the objection of the appellant, permitted Miller, the prosecuting witness at the former trial, to testify that he gave a description of the robbers to one McDermott, a police officer of the city of Spokane. McDermott was then called, and was permitted to testify, over the objection of the appellant that he received a description of the robbers from Miller on the morning after the robbery. The following question was then asked: 'Q. After getting this description, what did you do in the case?' and objection to this question was overruled, and the witness answered: 'I stated to hunt for Fair and Eder--for the men that did the job.' We think this testimony was clearly incompetent and prejudicial. It will be observed that the presence of Fair at the butcher shop at the time of the robbery was as important on this trial as on the trial for robbery, so far as the identification by the witness Miller was concerned. The only and apparent object of this testimony was to convey to the jury the impression that the description given by the witness Miller was so full and accurate tha the police officer immediately identified Fair and Eder as the robbers, and forthwith proceeded to apprehend them. The same result would have been accomplished had the prosecuting attorney asked the question, 'From the description given by Miller, who, in your opinion, committed the robbery?' The incompetency of this evidence would seem apparent, and yet such was the effect, and the only effect, of the testimony received. Miller himself might express an opinion as to the identity of Fair, 'mainly because the facts constituting similarity, or the reverse, in personal appearance, are so numerous and peculiar that they cannot be specifically narrated so as to bring out clearly their proper force and significance before the jury. Hence a witness, after describing a person seen by him, may state that in his opinion it was the prisoner, or that he resembled the prisoner, under the rule permitting a nonexpert witness to give his opinion where the jury would be unable, otherwise, to form an intelligent conception of identity.' Underhill, Crim. Ev. & 55. This rule does not extend to testimony such as was given by the witness McDermott. The purport of the testimony of McDermott was that, from the description given him, he formed the opinion or arrived at the conclusion that Fair and Eder...