State v. Thompson

• Citation: 48 P.2d 249,182 Wash. 697
• Decision Date: 12 August 1935
• Docket Number: 25493.
• Parties: STATE v. THOMPSON et al.
• Court: United States State Supreme Court of Washington

48 P.2d 249

182 Wash. 697

STATE v. THOMPSON et al.

No. 25493.

Supreme Court of Washington

August 12, 1935

Department 2.

Appeal from Superior Court, Snohomish County; Ralph C. Bell, Judge.

Mitchell Thompson, David Arine, and another were prosecuted for a criminal offense, and David Arine was convicted of robbery and he appeals.

Affirmed.

Adam Beeler, of Seattle, for appellant.

A. W Swanson, G. W. Louttit, and F. A. Clanton, all of Everett for the State.

STEINERT Justice.

An information filed by the prosecuting attorney of Snohomish county charged two of the defendants named therein, Mitchell Thompson and David Arine, with the crime of robbery, and the third defendant, Saul Bender, with aiding and abetting the commission of the crime. Thompson pleaded guilty to the charge. Arine and Bender went to trial upon the information and were found guilty by the jury. This is an appeal by Arine from the judgment on the verdict.

The facts of the case fully appear in State v Bender (Wash.) 47 P.2d 5, and will not be repeated here.

The first assignment of error is based upon a ruling of the court striking certain evidence of appellant's reputation for good character. A witness for the defense was called and, in a very brief direct examination, testified that he had known the appellant for about nine years and that his reputation as a law-abiding citizen, in the community in which he lived, was good. Upon cross-examination, it developed that the witness had become acquainted with appellant about nine years Before , at a time when the appellant was but a small boy. The witness at that time was working in a furniture store conducted by appellant's father. It further developed on cross-examination that since that time the witness had not had any intimate acquaintance with appellant's family, and only a casual, if any, contact with appellant himself; nor did the witness know any of appellant's associates. The witness then further testified that he had never heard any one say anything, one way or another, about appellant. Upon this showing the state moved that the evidence be stricken. The motion was granted.

Appellant relies upon the rule that a defendant in criminal case is entitled to introduce evidence of his good character. That rule is so well settled as to require no citation of authority. Under that rule, even negative testimony, such as was given upon the cross-examination, namely, that the witness has never heard the defendant's character called in question, is admissible. We have ourselves so held. State v. Underwood, 35 Wash. 558, 77 P. 863; State v. Turfey, 100 Wash. 5, 10, 176 P. 563.

But, to invoke such rule with respect to negative testimony, it must be shown that the witness was duly qualified to speak upon the subject; that is, that the witness was so situated that he would likely have heard any comments concerning the defendant's character. The Underwood and Turfey Cases recognize the condition precedent upon which such evidence is admissible. See, also, State v. Leabo, 120 Or. 160, 249 P. 363; State v. Morris, 149 Minn. 41, 182 N.W. 721; Holmes v. State, 88 Ala. 26, 7 So. 193, 16 Am. St. Rep. 17; Austin v. State, 95 Tex. Cr. R. 417, 254 S.W. 795; People v. Pauli, 58 Cal.App. 594, 209 P. 88; McClary v. People, 79 Colo. 205, 245 P. 491; Underhill on Criminal Evidence (4th Ed.) §§ 170, 171. For additional annotation of the cases, see 67 A. L. R. 1217. Were the rule not thus circumscribed, then a defendant in a criminal case could support his good character by the negative testimony of witnesses who know nothing of the defendant's associates and who are not in a position to hear anything concerning his reputation in the community.

This case presents just such a situation, so far as the evidence shows. It was demonstrated that the witness was not qualified to testify upon the subject, and his evidence was therefore properly stricken.

The next assignment of error is based upon the refusal of the court, during the course of the trial,...