State v. Sandros, 26003.

• Decision Date: 11 June 1936
• Docket Number: 26003.
• Citation: 58 P.2d 362,186 Wash. 438
• Parties: STATE v. SANDROS.
• Court: Washington Supreme Court

58 P.2d 362

186 Wash. 438

STATE v. SANDROS.

No. 26003.

Supreme Court of Washington

June 11, 1936

Department 1.

Appeal from Superior Court, Spokane County; R. M. Webster, Judge.

George P. Sandros was convicted of perjury, and he appeals.

Affirmed.

Richard S. Munter and H. E. T. Herman, both of Spokane, for appellant.

Ralph E. Foley, Carl P. Lang, and C. C. Quackenbush, all of Spokane, for the State.

GERAGHTY Justice.

The appellant was convicted, by the verdict of a jury, of the crime of perjury. A motion for new trial was made and overruled, and judgment entered upon the verdict, from which this appeal is prosecuted.

The second amended information, upon which appellant was tried charged that in a proceeding pending in the superior court of Spokane county, involving the execution of an instrument purporting to be the last will of Nellie Gunderson, deceased, the appellant appeared and was duly sworn as a witness and that, upon the issues there involved contrary to his oath, he swore, among other things, in substance and to the effect:

'(a) That defendant, George P. Sandros, and one C. H. Melson were at the apartment of Nellie Gunderson in the Lennox Hotel on the northwest corner of Riverside Avenue and Brown Street in the City of Spokane, Spokane County, Washington, on Friday, the 11th day of December, 1931, between three o'clock and four o'clock in the afternoon and then and there conversed with the said Nellie Gunderson;

'(b) That said C. H. Melson, after having been at the apartment of Nellie Gunderson in the Lennox Hotel on the northwest corner of Riverside Avenue and Brown Street in the City of Spokane, Spokane County, Washington, on Friday the 11th day of December, 1931, between three o'clock and four o'clock in the afternoon, left said apartment of Nellie Gunderson and ten or fifteen minutes later returned to said apartment of Nellie Gunderson with an instrument in writing for said Nellie Gunderson to sign;

'(c) That said Nellie Gunderson signed her name to an instrument in writing purporting to be a will in the presence of the defendant, George P. Sandros, and one C. H. Melson, at the apartment of said Nellie Gunderson in the Lennox Hotel on the northwest corner of Riverside Avenue and Brown Street in the City of Spokane, Spokane County, Washington, on Friday, the 11th day of December, 1931, between three o'clock and four-thirty o'clock in the afternoon of said date;

'(d) That defendant, George P. Sandros, and one C. H. Melson each in the presence of Nellie Gunderson and in the presence of each other, signed their respective names as witnesses to an instrument in writing purporting to be the will of Nellie Gunderson, at the apartment of said Nellie Gunderson in the Lennox Hotel on the northwest corner of Riverside Avenue and Brown Street in the City of Spokane, Spokane County, Washington, on Friday, the 11th day of December, 1931, between three o'clock and four-thirty o'clock in the afternoon of said date; * * *'

Whereas, in truth and in fact, the appellant and Melson were not in the apartment of Nellie Gunderson, as testified by him, and Nellie Gunderson did not sign her name to the purported will, in his presence and in the presence of Melson, and the appellant and Melson did not, at the time and place testified to, sign their respective names as witnesses to the instrument, in her presence and in the presence of each other; and 'that the name, Nellie Gunderson, written on said purported will is not the signature of Nellie Gunderson, was not written by her and that said signature is false.'

After the state had made its case in chief, C. H. Melson, the other witness to the will of Miss Gunderson, was called as a defense witness. He testified that, between the hours of 3 and 4 o'clock in the afternoon of the day of the execution of the alleged will, December 11, 1931, he was called by Nellie Gunderson to her apartment, by telephone; that on going there, he found the appellant present; that Miss Gunderson asked the witness to prepare a will for her; that he made notes of the particulars and repaired to his own office to write the will; that he returned to the apartment and submitted the draft to Miss Gunderson; that she approved and signed it, and he and appellant signed it as witnesses, at her request, and in her presence. He testified that, after the will had been executed, Miss Gunderson told him to take it with him and bring it back the next day; that he put it in his pocket and took it with him; that on returning to Miss Gunderson's apartment the next day, he was unable to deliver the will to her, and carried it in his pocket until the 17th or 18th of December, when he delivered it to Mr. Gleeson, Miss Gunderson having died in the meantime.

The witness was cross-examined by the prosecuting attorney as follows:

'Q. You are the same witness Melson that was on the witness stand here Before lunch? A. Yes, sir.

'Q. Do you know Mrs. Hutchins that lives up at Post Falls, Idaho? A. I don't recall the lady.

'Q. I will ask you if you recall last April sometime whether you went up to a lady's ranch to discuss this case with her? A. I went up to Post Falls to see somebody there. I don't know what the name was.

'Q. Well, was it a lady? A. A lady.

'Q. Would you recognize her if you saw her? A. I don't believe I would because it was in the dark when I saw her. They had gone to bed and didn't want to talk very much.

'Q. She was in bed when you got up there? A. Yes.

'Q. Do you recall Mr. Holman that was with her there that evening? A. No, I do not.

'Q. Did you see a man around there? A. Well, there was a man in the house but he didn't come outside because they had gone to bed.

'Q. Do you recall telling Mrs. Hutchins on that occasion that this will was signed by Nellie in your office? A. No, I never told her nothing of the kind.

'Q. You didn't tell her? A. No, sir.

'Q. Do you recall on that occasion telling Mrs. Hutchins that you carried this will in your pocket for about three weeks? A. Never told her nothing like that.

'Q. Do you recall telling her that you discovered this will accidently as you were going through your pockets? A. Never told her nothing like that, either.

'Q. Do you recall asking her if she would come down to see Judge Witt and swear that the signature on this instrument was Nellie's signature? A. Never, no, sir.

'Q. Do you recall that you told her you were a friend of Bill Gohl's? A. No, I didn't do that, either.

'Q. Wait until I finish my question. And that if Mrs. Hutchins would help you, that you would help Bill Gohl? A. No, I never made no proposition like that.'

Thereafter, Mrs. Hutchinson, the woman referred to, called by the state in rebuttal as an impeaching witness, was permitted to testify, over the objection of appellant:

'Q. Mrs. Hutchinson, calling your particular attention to sometime in April of this last year, do you recall seeing Melson at your place up at Post Falls? A. Yes, sir, he came to my place.

'Q. Was it in the daytime or nighttime? A. No, it was night.

'Q. About what time? A. Oh, it was probably about nine or a little better. I had retired.

'Q. Now, Mrs. Hutchinson, who else was there on that occasion? A. The man that farms my place.

'Q. What is his name? A. John Holman.

'Q. Was Mr. Holman where he could hear the conversation with Melson? A. He stood right back of me.

'Q. I will ask you, Mrs. Hutchinson, if C. H. Melson told you on that occasion, in April, 1934, at your home near Post Falls that Nellie Gunderson signed her will in his office? A. He did.

'Q. Did C. H. Melson on that same occasion tell you that he had carried this will of Nellie Gunderson in his pocket for about three weeks? A. Yes, sir. * * *

'Q. Did C. H. Melson on that same occasion tell you that he accidentally discovered this will in his pocket as he was going through his pockets? A. Yes, sir.

'Q. I will ask you, Mrs. Hutchinson, if on that occasion C. H. Melson requested that you come down to Judge Witt and swear that the signature on the will was her genuine signature? A. Correct.

'Q. Did C. H. Melson tell you on that occasion that he was a good friend of Bill Gohl's? A. Yes, sir.

'Q. And did C. H. Melson tell you on that same occasion that if you would help him in his case that he would help Bill Gohl? A. Yes, sir, he did.'

John Holman, called as a witness for the state, testified, over appellant's objection, that he was at Mrs. Hutchinson's home at the time of Melson's visit, and corroborated her testimony as to the conversation with Melson.

The principal errors assigned by the appellant are based upon the reception of the testimony of Mrs. Hutchinson and John Holman. It is the contention of appellant that the examination of these witnesses violated the rule that a witness cannot be impeached by the cross-examining party on a collateral matter elicited in his cross-examination.

The witnesses Hutchinson and Holman were called to discredit the testimony of Melson by showing that he had made prior contradictory statements.

'The fact that he has stated the facts differently shows either a failure of memory, that he has forgotten what he once knew or else it shows a want of integrity, and either way it impairs the value of his testimony. The variant statement may have been made either Before or after the witness testified. It is to be noted, however, that contradictory statements are admissible solely to impeach the witness, and for no other purpose. They are ineffective as direct and affirmative proof of the facts to which they relate. The presence of the party, whose witness it is sought to impeach, when the contradictory statements were made, is not necessary to make the statements admissible, since the purpose of showing them is not...