State v. Thorne

Decision Date05 August 1953
Docket NumberNo. 32145,32145
Citation260 P.2d 331,43 Wn.2d 47
CourtWashington Supreme Court
PartiesSTATE, v. THORNE.

John M. Warnock and James Tynan, Everett, for appellant.

Phillip Sheridan and Stuart C. French, Everett, for respondent.

HILL, Justice.

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:

'I'll offer to prove, I think through a hostile witness that she is shown to be, that on the night of--on last night, this child, in the presence of Mr. Walsh and Mr. Berry from the juvenile home, she said that she talked to Mr. Tynan [defense counsel] on several occasions and he said that if she didn't testify, her daddy would go back to prison; also that her dad * * * that her dad gave her presents. * * * That if she didn't give her testimony her daddy would go back to prison, and also said her dad promised her a bike and that he has been buying her many presents, and I think those are things we should elicit from this witness. * * * She is a hostile, adverse witness and those things are things that are tempting to a child of her tender years. She made these statements last night in the presence of two mature witnesses. * * * Also, she told these gentlemen last night that Mr. Tynan told her if she didn't testify this way she would go back to the juvenile home. She told Mr. Walsh and Mr. Berry that.'

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:

'I mean, she admits she told these officers all these things, any one of which would ultimately achieve the purpose which you should be trying to prove and that is that this little girl isn't worthy of belief, but, of course, actually what is happening is that you are proving your case by hearsay impeachment evidence. In other words, the jury isn't going to believe what this little girl says but I am afraid what this jury is going to believe is what she told the officers is what actually happened, and, of course, that isn't the purpose for which it is allowed to come in, but I didn't make the rule.'

'I appreciate that, but I accept the reasoning in the State v. Thomas case [1 Wash.2d 298, 95 P.2d 1036] as sound reasoning. That's why I permitted it, although I'll admit that the effect of such impeaching testimony, I am afraid, is going to be considered by the jury other than in the light for which it is offered, but I can't help that. I wish I could.

'I'll accept an instruction, if somebody wants to prepare one the best you can, to try to elucidate and instruct the jury as to type of weight to be given to that testimony. How much good it will do, I can't say.'

(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:

'The rule in its original and strict form against impeaching one's own witness is discredited everywhere, and it is generally recognized that impeachment may be resorted to where a witness has surprised the party offering him, by his testimony. The overwhelming weight of authority however, supports the rule that though trial courts should, in the exercise of a sound discretion to prevent injury from the surprise testimony of a hostile or corrupt witness, permit cross examination and impeachment by contradictory statements, it is never permitted to make of the rule an artifice by which inadmissible matter may be gotten to a jury through the device of offering a witness, whose testimony is known to be adverse, in order, under the name of impeachment, to get before the jury for its weighing, favorable ex parte statements the witness has made. To the relaxation of the rule against impeaching one's own witness by introducing his ex parte statement in contradiction of his testimony, it is fundamental, we think, that the party offering the witness be really surprised at his testimony. Further, it is equally fundamental that the impeaching testimony be admitted not for the purpose of supplying what the witness was expected to, but did not, say, as a basis for a verdict, but only to eliminate from the jury's minds any positive adverse effect which might have been created by the testimony which has surprised the offerer.'

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

'* * * a careful instruction by the court, that the impeaching evidence is not at all admitted as evidence in the offerer's favor, but for what effect it may have in overcoming the testimony which has surprised the offerer. In short, the impeaching and contradictory statements are 'admitted only to destroy the credit of the witnesses, to annul and not to substitute their testimony.' Id. [New York Life Ins. Co. v. Bacalis, 5 Cir., 94 F.2d 200.]'

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:

'The magnitude of the error in this case was increased by the absence of limiting instructions on the functions of impeachment. The jury was thus permitted to consider the prior inconsistent written statement as proof of the truth of its contents.

'It is elementary that impeaching evidence should affect only to the credibility of the witness. It is incompetent to prove the substantive facts encompassed in such evidence.'

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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