State v. Sayward

• Decision Date: 19 December 1963
• Docket Number: No. 36872,36872
• Citation: 63 Wn.2d 485,387 P.2d 746
• Parties: STATE of Washington, Respondent, v. George Theodore SAYWARD, Appellant.
• Court: Washington Supreme Court

Page 485

63 Wn.2d 485

387 P.2d 746

STATE of Washington, Respondent, v. George Theodore SAYWARD, Appellant.

No. 36872.

Supreme Court of Washington, Department 2.

Dec. 19, 1963.

K. Edison Gimple, Soap Lake, for appellant.

Paul Klasen, Pros. Atty., Ephrata, for respondent.

DONWORTH, Judge.

George Theodore Sayward has appealed from the judgment and sentence based on his conviction of the four separate counts in the information filed against him by the prosecutor of Grant County. In the first count he was charged with driving a motor vehicle while under the influence of intoxicating liquor within a period of five years of a previous conviction of the same offense. In the last three of the counts he was charged with the crime of negligent homicide by means of a motor vehicle.

The facts of the case can be briefly stated. Appellant, on March 31, 1962, at about 10:30 p. m., was driving alone toward Ephrata in a 1951 Packard automobile on a four-lane highway inside the city limits, when he crossed the center line and collided almost simultaneously head on with two other automobiles which were proceeding in the opposite direction. As a result of the collision, three young men were killed and a fourth was seriously injured.

The state's evidence at the trial tended to show that appellant had been drinking beer prior to the accident. There was a conflict in the evidence as to whether appellant was intoxicated at the time of the collision. There was also evidence tending to show that appellant, at the time of the collision, was operating the automobile at 78 miles per hour in a 50-mile zone. The jury found him guilty on all four counts contained in the information.

The statute (RCW 46.56.010) making it an offense to operate a motor vehicle while under the influence of intoxicants provides, in part:

'It is unlawful for any person who is under the influence of or affected by the use of intoxicating liquor or of any narcotic drug to drive or be in actual physical control of any vehicle upon the public highways.

'* * *

'Upon the first conviction for the violation of the provisions of this section the court shall impose a fine of not less than fifty dollars or more than five hundred dollars and not less than five days or more than one year in jail, and shall, in addition thereto, suspend the operator's license of such person for not less than thirty days. Upon second conviction for a violation of the provisions of this section within a period of five years, the court shall impose a fine of not less than one hundred dollars or more than one thousand dollars and not less than thirty days or more than one year in the county jail, and neither the fine nor the jail sentence so imposed shall be suspended, and shall, in addition thereto, suspend the operator's license of such person for not less than sixty days after the termination of such jail sentence. * * *'

The primary issue on this appeal (appellant's fourth and fifth assignments of error) is whether evidence of a prior conviction of the crime of operating a motor vehicle while under the influence of intoxicating liquor is admissible to increase the penalty of a charge of operating a motor vehicle while under the influence of intoxicating liquor, when that charge is included in an information which charges the defendant with three counts of negligent homicide by means of a motor vehicle. (RCW 46.56.040.)

The prosecution was permitted by the trial court, over appellant's objection, to introduce evidence of a prior conviction in the justice court of operating a motor vehicle while under the influence of intoxicating liquor within a five-year period. The question of its admissibility was discussed at some length in the absence of the jury. During this discussion the following occurred:

'Mr. Gimple: I think there is another objection in line with your habitual criminal statutes, that the alleging of a previous offense is only a matter of sentencing, and is not material to the inditement, and actually should be stricken from the inditement, as I pointed out to the court a couple weeks ago. It is a matter of proof subsequent to the conviction and not prior to the conviction.

'Mr. Klasen: There is a different penalty for the crime. It is our understanding of the law that we have to allege it so he knows what he is defending. This isn't an habitual criminal statute, this is the R.C.W. 46.56.010.

'The Court: Let me read that, please. (Court read some.) From the reading of the portion of the Statute and the count that is set forth, to give the court authority to impose the penalty which is set forth in the Statute under the second conviction within five years, it would be necessary for the Count to so state it, wouldn't it?

'Mr. Klasen: That is the way we feel.

'The Court: If you didn't then the court would have nothing before it to impose it.

'Mr. Klasen: That's right.

'The Court: It is your contention another trial be held after the third felony conviction and then bring in the habitual criminal * * *.

'Mr. Gimple: That's right.

'The Court: That is a separate matter. Plaintiff's Exhibit 22 will be admitted over objection, and the record may show an exception thereto by the defendant's attorney. You may bring in the jury.'

Thus, the trial court gave as his reason for admitting the evidence that RCW 46.56.010 requires its admission.

The jury was instructed, in instruction No. 9, as follows:

'You are instructed that before you can find the Defendant, George Theodore Sayward, guilty of the crime of Driving a Motor Vehicle while Under the Influence of Intoxicating liquor as charged in Count 1 of the Information, you must find from the evidence in this case beyond a reasonable doubt, as follows:

'1. That the Defendant, George Theodore Sayward, on or about the 31st day of March, 1962, was driving a motor vehicle on a public highway in Grant County;

'2. That at said time and place the Defendant, George Theodore Sayward was operating said motor vehicle while under the influence of or affected by intoxicating liquor.

'3. That within a period of 5 years prior to the 31st of March, 1962, George Theodore Sayward was previously convicted of driving a motor vehicle while under the influence of intoxicating liquor.

'IF YOU FIND that from the foregoing elements 1, 2 and 3, have not been established by the evidence in this case beyond a reasonable doubt, you must acquit the Defendant, but if you find all of these elements to have been so established beyond a reasonable doubt, you should find him guilty as charged.'

The general rule is that evidence of a prior conviction is not admissible. State v. Beard, 148 Wash. 701, 269 P. 1051 (1928). A similar problem is discussed in State v. Dinges, 48 Wash.2d 152, at page 154, 292 P.2d 361, at page 362 (1956), where we said:

'A defendant must be tried for the offense charged in the indictment or information. To introduce evidence of an unrelated crime is grossly and erroneously prejudicial, unless the evidence of the unrelated crime is admissible to show motive, intent, the absence of accident or mistake, a common scheme or plan, or identity. These exceptions are not necessarily exclusive; in numerous cases cited, we have pointed out that the true test of admissibility is that the evidence of other criminal offenses must be relevant and necessary to prove an essential ingredient of the crime charged.

'Testimony of the alleged burglary, in the instant case, establishes no essential ingredient of the crime of illegal possession of narcotics. Its admission in evidence, under these circumstances, was prejudicial to appellant.'

Another exception to the rule is provided by RCW 10.52.030, which allows the state to show a conviction of a felony or misdemeanor for the purpose of attacking the credibility of a defendant if he takes the stand as a witness. State v. Maloney, 135 Wash. 309, 237 P. 726 (1925); State v. Lindsey, 27 Wash.2d 186, 177 P.2d 387, 181 P.2d 830 (1947), and cases cited. In this case, appellant did not take the stand.

In State v. Stump, 16 Wash.2d 140, 132 P.2d 727 (1943) (relied upon by the state), the admissibility of evidence of prior convictions was considered. There, the defendant was charged with the unlawful possession of liquor, with intent to sell it, the penalty for which is increased for subsequent offenses (RCW 66.44.180). Defendant Stump took the stand and, under cross-examination, admitted she had two prior convictions of similar offenses. Confronted with the question of whether additional evidence of the prior convictions (consisting of certified copies of the judgments and sentences) should be admitted to prove the requirements of an aggravated offense, the trial court concluded that, because defendant and Stump had taken the stand and admitted the prior convictions, the additional evidence would be allowed.

The question presented to this court in Stump was whether appellant was prejudiced by the introduction of evidence of the prior convictions. This court in effect concluded that appellant had not been prejudiced by the evidence. It was argued by Mrs. Stump that admitting the evidence at the trial for the purpose of increasing the penalty was improper, and that procedure similar to that used in habitual criminal cases should be followed. This argument was rejected because that procedure had not been followed in Washington in other liquor violation cases or in other jurisdictions having similar liquor statutes. In its opinion, this court then stated as dictum that the procedure there outlined ¹ should be applicable to all aggravated offense statutes.

We disagree with the broad statement made in Stump. We hold that it is prejudicial error to allow evidence of a prior conviction of a similar offense to be introduced in a jury trial where the defendant has not taken the stand and where no other exception to the general rule is shown to exist. This evidence is highly prejudicial and easily tends...