State v. Spisak

• Decision Date: 07 February 1917
• Docket Number: 13648.
• Citation: 94 Wash. 566,162 P. 998
• Court: Washington Supreme Court
• Parties: STATE v. SPISAK.

162 P. 998

94 Wash. 566

STATE v. SPISAK.

No. 13648.

Supreme Court of Washington

February 7, 1917

Department 1. Appeal from Superior Court, Grays Harbor County; Ben Sheeks, Judge.

Mike Spisak was convicted of assault in the second degree, and he appeals. Reversed and remanded, with instructions to grant a new trial.

A Emerson Cross, of Aberdeen, and W. H. Abel, of Montesano, for appellant.

J. E Stewart, of Aberdeen, O. M. Nelson, of Montesano, and J. M Phillips, of Aberdeen, for the State.

MORRIS J.

Appeal from a conviction of assault in the second degree. The error urged is in the refusing to admit testimony offered by appellant as to a conversation had with T. H. McKay concerning the shooting charged as the assault.

The record shows this: Appellant testified that Winslow, the complaining witness, was beating his (appellant's) son that appellant three times demanded that Winslow stop, and when he refused to do so, appellant shot in order to scare Winslow. Upon cross-examination counsel for the state laid the foundation for appellant's impeachment by asking him if he did not, at the time of his arrest, tell the sheriff a different story concerning the affair. This was denied. Anticipating the impeachment, counsel for the defense then offered to prove by appellant that subsequent to the purported conversation which it was contended he had with the sheriff, but on the same day, appellant appeared before McKay for the purpose of obtaining a bail bond, and at that time made statements to McKay concerning the shooting substantially the same as those related by him upon the witness stand. This offer was denied. The state then produced the sheriff, who testified that appellant, at the time of his arrest, told him that Winslow was shooting at his son; that two or three shots were fired, and upon Winslow's refusal to stop shooting at appellant's command, he shot at him. Upon surrebuttal the testimony of both appellant and McKay as to what was said to McKay was again offered and again denied.

Four cases from this jurisdiction are relied upon in support of the contention that the offered testimony was admissible. The first of these is State v. Manville, 8 Wash. 523, 36 P. 470. In that case Manville was convicted of murder and appealed. During the progress of the trial appellant called one Hartsock, who testified that Conboy, a witness for the state, had made a statement to him the day after the tragedy occurred, concerning the manner in which the shooting was done, which statement was at variance with a material point in Conboy's testimony. The state, in rebuttal, introduced three witnesses who testified that the statement made by Conboy to Hartsock was substantially the same as the statement made by him on the witness stand. Appellant alleged error in the admission of the testimony of the three witnesses to corroborate Conboy, contending that the testimony of a witness cannot be sustained by showing that his testimony corresponds with statements that he had previously made, citing Ellicott v. Pearl, 10 Pet. 412, 9 L.Ed. 475. In discussing the alleged error the court said:

'* * * While the general doctrine announced in that case [Ellicott v. Pearl] and which is, no doubt, a correct doctrine, sustains appellant's contention, the exception made to the general rule is as plainly enunciated as the rule itself, and the case at bar falls squarely within the scope of the exception instead of the rule.'

The Ellicott Case is then quoted from as follows:

"Where parol proof,' says Justice Story, who rendered the opinion of the court in that case, 'has been offered against the testimony of a witness under oath, in order the impeach his veracity, establishing that he has given a different account at another time, we are of opinion that, in general, evidence is not admissible, in order to confirm his testimony, to prove that at other times he had given the same account as he has under oath; for it is but his mere declaration of the fact, and that is not evidence. His testimony under oath is better evidence than his confirmatory declarations not under oath; and the repetition of his assertions does not carry his credibility further, if so far, as his oath. We say in general, because there are exceptions; but they are of a peculiar nature, not applicable to the circumstances of the present case, as where the testimony is assailed as a fabrication of recent date, or a complaint recently made; for there, in order to repeal such imputation, proof of the antecedent declaration of the party may be admitted."

This court thus approved of the general rule announced in the Ellicott Case and the exception therein mentioned, namely, that testimony assailed as a recent fabrication may be corroborated by showing prior consistent statements. As further showing the exception was adopted, the court continues:

'The defendant in this case assailed the testimony of Conboy as a fabrication. That was the object of Hartsock's testimony, to make it appear to the jury that at first Conboy had told the truth, but that subsequently he had fabricated the statement which he made under oath.'

The next case is State v. Coates, 22 Wash. 601, 61 P. 726. There the appellant, Coates, was convicted of burglary. To obtain the conviction the prosecution relied almost entirely upon the testimony of one Kauffman, an accomplice of appellant, who detailed with particularity appellant's part in the crime with which he was charged. In contradiction of Kauffman's testimony appellant offered the testimony of five police officers, to the effect that Kauffman had been 'sweated' and a confession of the burglary with which appellant was charged obtained. In this confession Kauffman said he was the only one engaged in the burglary, and in no way at that time implicated appellant. Upon rebuttal the state called one Hobart to prove that Kauffman had made the same statement implicating appellant as he...