State v. Thorne
Decision Date | 05 August 1953 |
Docket Number | No. 32145,32145 |
Court | Washington Supreme Court |
Parties | STATE, v. THORNE. |
John M. Warnock and James Tynan, Everett, for appellant.
Phillip Sheridan and Stuart C. French, Everett, for respondent.
Defendant Fred L. Thorne, Jr., is charged with the crime of carnal knowledge of his daughter, a child of the age of eight years.
In Thorne v. Callahan, 1951, 39 Wash.2d 43, 234 P.2d 517, we held that Thorne, who had entered a plea of guilty to that charge, had been denied due process of law in that he had not understandingly waived counsel. Thereafter Thorne was permitted to change his plea to not guilty and to go to trial thereon. From the judgment and sentence entered upon the verdict of guilty, this appeal is taken.
Appellant insists that the corpus delicti was not established and that such testimony as had a bearing on it was received in violation of well established rules of evidence. We therefore begin a quest to see whether we can find competent evidence establishing the corpus delicti; it is usually established in cases of this kind by the testimony of the victim, but here direct evidence of the commission of the offense charged is entirely lacking. The child, when called as a witness (at that time ten years of age) and asked, 'What did your daddy do to you on the night of June 3, 1950?' replied, 'Nothing.' Her testimony in no way tended to establish the defendant's guilt and, if believed, must have resulted in his acquittal.
It was obvious that, unless the child could be impeached, the state had no case. The state claimed surprise.
Two prerequisites to impeachment of one's own witness are (1) surprise and (2) prejudicial and harmful testimony. State v. Bossio, 1925, 136 Wash. 232, 239 P. 553; State v. Swan, 1946, 25 Wash.2d 319, 171 P.2d 222; annotation, 74 A.L.R. 1042, 1064. See, also, 15 Wash.L.Rev. 127 (1940). It is not enough to claim surprise; there must be surprise. Young v. United States, 5 Cir., 1938, 97 F.2d 200, 117 A.L.R. 316.
A deputy prosecuting attorney and the juvenile probation officer interviewed the child the night before the trial began. The prosecuting attorney knew that she had been living with the appellant for some time before the trial. However, the full extent of the prosecutor's knowledge regarding the attitude of his key witness was not disclosed to the trial judge until after the state had been permitted, in the guise of impeachment, to open the floodgates of hearsay. Then, in an effort to get in further impeaching evidence, the prosecutor made the following offer of proof:
There is no contention that the child misled or deceived anyone by her statements the night before the trial. If she had testified at the trial in any respect contrary to her statements of the night before to the representative of the prosecuting attorney, she would most certainly have been impeached as she was on every other inconsistent and contradictory statement she made. Either she told the deputy prosecuting attorney what her testimony would be, as the offer of proof indicates, or no inquiry was made at that interview as to how she was going to testify. That the prosecution (or any party) would put a ten-year-old child on the witness stand without discussing with her what her testimony would be seems most unlikely; but that the prosecution, knowing all the matters contained in the offer of proof which we have quoted, would put such a child on the stand without some assurance as to what her testimony would be is inconceivable. A claim of surprise under such circumstances does not warrant credence. There being no surprise, one of the prerequisites for impeachment was lacking and a new trial must be granted.
On being asked whether she had made statements to Snohomish county officers accusing her father of the offense charged and of other sexual offenses, the child freely admitted that she had, but said that those statements were not true and that her mother had told her to make them to the officers. The claimed purpose of eliciting from the witness that she had made prior statements (at least seven of them) inconsistent with and contradictory of her present testimony was, by means of that form of impeachment, to destroy her credibility. The impeachment, even if wholly successful, would have accomplished no more than to have her testimony disregarded by the jury. State v. Bogart, 1944, 21 Wash.2d 765, 153 P.2d 507; State v. Fliehman, 1949, 35 Wash.2d 243, 212 P.2d 794.
At the conclusion of the state's examination and impeachment of the child, the trial court indicated in two statements exactly what had happened:
(No such instruction was requested or given.)
In Young v. United States, 5 Cir., 1938, 97 F.2d 200, 205, 117 A.L.R. 316, it was said:
Whether the semblance of a fair trial could have been preserved by striking the testimony of the child, including all of the impeachment, is a matter on which we need not speculate.
It is pointed out in Young v. United States, supra, that impeaching testimony under such circumstances must be considered in the light of
'
See, also, Culwell v. United States, 5 Cir., 1952, 194 F.2d 808.
In State v. Fliehman, 1949, 35 Wash.2d 243, 212 P.2d 794, 795, we said:
While we recognize that such a limiting instruction is not always necessary, State v. Gilmore, Wash.1953, 257 P.2d 215, it would seem that under the circumstances of the...
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