State v. Smythe

• Decision Date: 08 June 1928
• Docket Number: 21217.
• Citation: 148 Wash. 65,268 P. 133
• Parties: STATE v. SMYTHE.
• Court: Washington Supreme Court

268 P. 133

148 Wash. 65

STATE v. SMYTHE.

No. 21217.

Supreme Court of Washington

June 8, 1928

Department 1.

Appeal from Superior Court, Thurston County; John M. Wilson, Judge.

Lem Smythe was convicted of manufacturing whisky with intent to sell, and he appeals. Affirmed.

J. C Kibbe, of Tenino, for appellant.

W. J Milroy and Leonard E. Top, both of Olympia, for the State.

TOLMAN J.

Appellant was charged, tried, and convicted in a justice court of the crime of manufacturing moonshine whisky with intent to sell. He appealed from that conviction to the superior court for Thurston county, and was again convicted. Now by appeal he brings the case here for review. Numerous errors are assigned, some of which require no discussion. Those principally relied upon will be treated in the order of their presentation.

1. After the conviction in justice court, and two days before the time set for trial in the superior court, appellant caused subpoenas to be issued for two persons, who had been referred to in the state's evidence given before the justice, but who had not there testified. They not appearing at the time set for trial, an oral motion for continuance was then made, supported by an oral statement purporting to show that these witnesses would each given testimony material to the defense, if present, and that one was absent from the state, but would return in a few days and that the other was sick and in a hospital in the city of Tacoma, but likely to recover and be able to be present and testify later in the term. The trial court denied the motion on the ground of lack of diligence and lack of a statutory showing by affidavit. Appellant asked time in which to prepare the statutory affidavit, which was denied. A written motion, supported by affidavit, to the same effect as the oral motion and statement, was presented at the close of the state's evidence, and again denied, and these various rulings are assigned as error.

As to the witness absent from the state, it is clear that due diligence was not used to subpoena him before his departure, and as to the witness who was ill the affidavit (as well as the oral statement) was so lacking in clear, direct statements as to what his testimony would be, if present, and so abounded in conclusions, as to offer no opportunity for the prosecuting attorney to admit that such testimony would be given, if the witness were present, as provided by our statute. Rem. Comp. Stat. § 2135. We can see no abuse of discretion on the part of the trial court.

'The frequent abuse of the right to obtain a continuance has induced stricter vigilance by the courts to prevent such abuse. The very nature of the relief requested is such that the decision of the question necessarily rests almost entirely upon the discretion of the trial court, and we are not inclined to interfere with such discretion unless abused to the extent of prejudicing the applicant's right to a fair trial.' State v. Conner, 107 Wash. 571, 182 P. 602.

2. On cross-examination of one of the principal witnesses for the state, appellant asked: 'Now, you have epileptic fits every once in a while, don't you?' To which the witness answered, 'Yes,' and the following immediately occurred:

'Mr. Top: I object to that as incompetent, irrelevant, and immaterial.

'Mr. Kibbe: A man with epilepsy is not as much to be believed or dependent upon his word; it is not as good, and his memory is not as good, and he is affected in every way, and I want to show that as bearing on his credibility.

'The Court: The objection may be sustained.

'Mr. Kibbe: Exception. The court's ruling is that he may not testify to that?

'The Court: Yes.'

There was no proof in the case as to the possible effect that epilepsy may have upon the mind or memory of its victims, and the offer as shown does not include or cover that important point. If epilepsy does or may affect the mind, that fact is not so commonly known that judicial notice can be taken of it. If the authorities go to the extent for which appellant contends, he has not by his offer brought himself within the rule.

3. The state introduced evidence tending to show that appellant was the owner of a certain still used in the manufacture of moonshine whisky. To meet this evidence appellant sought to show ownership of the still in another. A witness for the defense testified that another was the owner, and, when cross-examined as to the basis of his knowledge, said, 'The fellow told me,' whereupon, on motion of the prosecutor, the direct testimony of the witness upon this sobject was stricken. Another witness for the defense testified:

'Q. Mr. Smith, were you ever up where this still had been operated? A. Yes.

'Q. When was that? A. Well, it has been in the hunting season; I was up there hunting.

'Q. Did you see anybody up there? A. I saw one man up there. I didn't see nothing of the still. I saw some barrels. He was hauling out some barrels out of the brush. I was going along the road, and he brought them out on the old plank road. I seem him hauling away some kegs.

'Q. Do you know who he was? A. I don't know who he was. He was a kind of a big man. He was dark complected. I don't know who he was.

'Q. Did he make any statement to you about the still?

'Mr. Top: I object to that as incompetent, irrelevant and immaterial.

'The Court: The objection may be sustained.

'Mr. Kibbe: Exception. We offer to prove by the witness on the stand that he--at the time he saw the man loading the barrels, the man told him that it was his still that had

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