State v. Swan

• Decision Date: 08 July 1946
• Docket Number: 29814.
• Parties: STATE v. SWAN.
• Court: Washington Supreme Court

171 P.2d 222

25 Wn.2d 319

STATE v. SWAN.

No. 29814.

Supreme Court of Washington

July 8, 1946

Department 1

Orval Swan was convicted of manslaughter, and he appeals.

Reversed and remanded with direction.

Appeal from Superior Court, Kitsap County; H. G Sutton, judge.

Ray R Greenwood, of Port Orchard, for appellant.

Frederick B. Cohen and W. U. Park, both of Bremerton, for respondent.

MILLARD Justice.

Trial of defendant on a charge of manslaughter alleged to have been committed June 2, 1945, resulted in verdict of guilty as charged. This appeal is from the judgment entered on the verdict.

The first assignment is that the trial court erred in permitting the state, over objection, to impeach one of its witnesses thereby bringing to the attention of the jury irrelevant and hearsay testimony, which supplied the only evidence the state had to prove appellant's guilt of the crime charged.

Appellant and his family of four children and his housekeeper, one Edna Gideon who married appellant following his arrest on the charge of manslaughter, lived on Bainbridge Island in Kitsap county. Sidney Hill, the deceased in this case, also resided no Bainbridge Island. The afternoon of Saturday, June 2 1945, appellant and his housekeeper went to a tavern on the Island where they met Coral Paez, Vera Slossen and Sidney Hill. The parties drank a copious amount of beer and wine and were more or less affected by the intoxicants. As they left the tavern where they had spent two or three hours with the intention of going to the home of Mrs. Paez and later gather at the home of appellant and have a meal, appellant was quarreling with his housekeeper. When Hill championed her cause appellant attacked him. One Roy Reagan, a friend of Hill, stopped the fight by hitting appellant with a bottle. Hill weighed about one hundred and thirty-five pounds or forty pounds less than appellant, who was a much younger man than Hill. The group arrived at the home of Mrs. Paez about 9:45 p.m., when Hill and appellant seemed to have forgotten the fight. Later in the evening, however, appellant and Hill were quarreling. The cause of their controversy is not material to this action. Appellant testified that with his fist he struck Hill in the left jaw. Some time during the fight Hill and appellant were both on the floor from which appellant arose and departed for home with Mrs. Gideon, his housekeeper. Hill was still on the floor. The only persons present during the affray were appellant, Edna Gideon (now appellant's wife), Sidney Hill and Richard Sands, a boy fourteen years of age.

Sands testified that appellant hit Edna Gideon and when Hill tried to stop him by placing a hand on appellant's shoulder, Sands, realizing the imminence of a fight, immediately went into the other room to get his mother, Mrs. Paez. He never saw appellant hit Hill. When Sands returned to the room where the fight was staged appellant was straightening up from Hill's body. Appellant then knocked Mrs. Gideon down and shoved Mrs. Slossen down to the floor. His attempt to continue the brawl by fighting Mrs. Paez failed because the woman hit him with a coffee pot which stopped him. Appellant then took Mrs. Gideon out of the house and they went home.

Sidney Hill was never seen to move after he fell to the floor as a result of his collision with appellant's fist. Photographs of Hill's body, in the same position on the floor as it was after appellant struck him, show numerous bruises upon the left side of the face and throat of deceased.

To sustain the state's case in chief there was no evidence from which it was reasonably inferable that appellant struck the deceased except the testimony of Richard Sands. He testified that when Sidney Hill assumed the role of peacemaker in appellant's quarrel with Edna Gideon, Hill placed his hand on appellant's shoulder apparently in an endeavor to induce appellant to not again strike the woman. Sands then went into the next room to get his mother and on immediately returning to the scene of the quarrel he saw Hill on the floor and appellant was straightening up from Hill's body. That evidence was sufficient to sustain the verdict. Appellant admitted that he struck Hill.

Richard Sands, called as a witness on behalf of the state, testified on direct examination that he never saw appellant strike Hill. Counsel for the state then suggested to the witness that he think the matter over very carefully whereupon the witness replied, 'No, he didn't. I am very sure of it.'

In the attempted impeachment by the state of its witness the following occurred:

'Q. You recall telling me,----

'Mr. Greenwood: Just a minute. I object.

'The Court: Objection sustained.

'Mr. Cohen: I have a complete statement taken the next morning. There had been several things.

'The Court: You have to prove something Before you can impeach him. You haven't proved anything.

'Mr. Cohen: I will make it in the absence of the jury. It's merely the statements he made to me.

'Q. Do you recall talking to me the next morning? That was Before Sid Hill's body was moved? A. Yes, I believe it was.

'Q. I talked to you in the living room? A. Yes.

'Q. You later went into the kitchen? A. I guess so. I don't remember.

'Q. Did you tell me the whole story at that time?

'Mr. Greenwood: Objected to--irrelevant, immaterial. He can't impeach his own witness.

'The Court: Sustained.

'Mr. Cohen: I have here a complete statement taken from the boy the next morning.

'Mr. Greenwood: I object to the reading of that statement.

'The Court: You can claim surprise but you can't impeach him, unless there are admissions sufficient on which to found a case of impeachment.

'Mr. Cohen: I want to ask him what he told me the next morning.

'The Court: Go ahead. I'll limit you to that. Ask him what he told you the next morning.

'Q. I'm going to ask you if you told me this, the next morning:

'Mr. Greenwood: My objection still goes to his reading that statement. I don't know what it is.

'The Court: He'll not read it.

'Q. I am going to ask you if I asked you this question the next morning: 'When you came back, Sidney was down and Orval was hitting him?' And then your answer: 'Sidney was on his side.' Remember that? (Reading from statement) A. Yes.

'Q. 'How was Orval standing when he was hitting him?' (Reading)

'Mr. Greenwood: If Your Honor please, that is not fair. They were putting words in his mouth.

'The Court: Objection sustained. This is a fourteen year old boy. Those questions are not fair to a fourteen year old boy.

'Mr. Cohen: I think the next answer would clarify it.

'Mr. Greenwood: I object to that--object to any further statement along that line. (Mr. Cohen handing statement to court at court's request)

'The Court: Objection sustained. (Examining statement)

'Mr. Cohen: Your Honor please, I'd like to read further down here.

'The Court: There is one question there--two questions there, you may ask him.

'Mr. Cohen: Your Honor must appreciate these were taken at the scene of the,----

'The Court: There are only two statements which tend to impeach him. You may ask him about those two. (Court handing statement to counsel)

'Q. I am going to ask you whether or not,--do you recall my asking you this question: 'How many times did you see Orval hit Sidney after Sidney was down?' And your answer: 'He hit him at least two or three times.' Do you remember that?

'Mr. Greenwood: Before he answers, I object to the question on the grounds he can't impeach his own witness--no proper foundation laid to impeach him.

'The Court: Overruled.

'Mr. Greenwood: And the witness should be instructed to the necessity of a 'Yes' or 'No' answer.

'The Court: Objection overruled. (To Witness) Did you answer the question in the way that Mr. Cohen read it to you?

'The Witness: What is it, again?

'Q. I am going to ask you if I read this question to you and you gave me this answer, the next morning. 'How many times did you see Orval hit Sidney after Sidney was down?' And your answer: 'He hit him at least two or three times.' Do you remember my asking you that question and your giving me that answer, the next morning? A. Yes, I think so.

'Q. You did tell me that. I am going to ask you if I asked you this question and you gave me this answer, the next morning: Question, 'Were they good solid punches?' Answer, 'He was really swinging hard.' Do you remember me asking that question and you giving me that answer?

'Mr. Greenwood: Same objection to these questions.

'The Court: Same ruling.

'Q. Do you remember that? Do you remember answering that way? (By the Court) A. I can't be sure.

'Q. Let me ask you this: Has your memory been refreshed to any extent that you can tell us whether or not you saw Orval Swan hit Sidney Hill that night in the kitchen?

'The Court: Did you see him strike Sidney Hill down?

'The Witness: I didn't actually see Orval hit him but when I came back from the living room, he was straightening up from his body.

'The Court: You didn't actually see him hit him?

'The Witness: No.

'Q. Did you see him swing?

'Mr. Greenwood: That is part of the hitting--objected to as leading--highly leading.

'The Court: No, no, he may answer. Exception allowed.

'Q. Did you see Orval Swan swing at Sid Hill when he was down? A. (No response)

'The Court: To the best of your recollection, Richard. You are on oath and you want to be sure that you give testimony according to your best recollection. A. Well, when I was standing in the living room, I couldn't be sure,--couldn't be sure of seeing him hitting him out of the corner of my eye, but I seen some action. I couldn't be sure.

'The Court: When you went out in the kitchen,----...