State v. Turner

• Decision Date: 29 March 1921
• Docket Number: 16226.
• Citation: 115 Wash. 170,196 P. 638
• Court: Washington Supreme Court
• Parties: STATE v. TURNER.

196 P. 638

115 Wash. 170

STATE v. TURNER.

No. 16226.

Supreme Court of Washington

March 29, 1921

Department 1.

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

J. A Turner, alias Archie Turner, was convicted of an offense against the liquor laws, and he appeals. Affirmed.

O. T Webb and Coleman & Fogarty, all of Everett, for appellant.

Thos A. Steger and Q. A. Kaune, both of Everett, for the State.

HOLCOMB, J.

The first assignment of error upon which appellant seeks a reversal of the verdict and judgment of conviction is the admission in evidence of two exhibits offered by the state showing the conviction of appellant of other offenses. These exhibits were certified copies of the record of convictions upon pleas of guilty of offenses against the liquor laws in Whatcom county.

Appellant had offered himself as a witness, and upon cross-examination had been asked if he had been convicted in Whatcom county of any offense, and he testified that he had, of one offense. He was then asked if he had not been convicted of two offenses of a like nature, and he said that he had not. Thereupon the state offered the exhibits containing the certified copies of the record of two convictions, upon two pleas of guilty on the same day, of like offenses. It so happens that these convictions were for offenses akin to the offense upon which appellant was being tried herein, but the evidence had not been offered as original independent evidence on the part of the state, but only as evidence tending to affect his credibility as a witness, and the court so limited the evidence in instructing the jury, as follows:

'The fact that the defendant has previously been convicted of other offenses under the laws of this state is not of itself any evidence of his guilt in this case. It is however, a circumstance to be weighed and considered by you in the determination of what weight or credibility should be allowed his testimony as a witness in this case.'

Section 2290, Rem. & Bal. Code, enacted in the Criminal Code of 1909, provides:

'Every person convicted of a crime shall be a competent witness in any civil or criminal proceeding, but his conviction may be proved for the purpose of affecting the weight of his testimony, either by the record thereof, or a copy of such record duly authenticated by the legal custodian thereof, or by other competent evidence, or by his cross-examination, upon which he shall answer any proper question relevant to that inquiry, and the party cross-examining shall not be concluded by his answer thereto.' (Italics ours).

Upon the same question, in State v. Overland, 68 Wash. 566, 123 P. 1011, we said:

'Whatever may have been the rule prior to the adoption of the Criminal Code, it is now the law that, when a party accused of crime offers himself as a witness, it may be shown that he has been previously convicted of a crime. This question is settled by the statute (Rem. & Bal. Code, § 2290), and by at least two decisions of this court based thereon ( Stat v. Blaine, 64 Wash. 122, 116 P. 660; State v. Stone, 66 Wash. 625, 120 P. 76).

'Nor does the statute make or retain the old distinctions between proofs of misdemeanors and of felonies. Conviction of a crime may be shown, and a crime, by the terms of the statute, 'is any act or omission forbidden by the law and punishable on conviction by death, imprisonment, fine or other penal discipline.''

Nor is the statute to be construed as compelling the prosecution to be content with the proof of a single conviction of an offense in producing evidence of that character to affect the credibility of the accused. State v. Smith, 103 Wash. 267, 174 P. 9, cited and quoted by appellant, is not applicable to this question, for in that case independent, original evidence of other offenses was offered by the state for the purpose of showing the tendency of the appellant in that case to commit the crime charged. The evidence was rejected by this court, and the former cases of this court distinguished upon that question. The exhibits were therefore properly received.

The second assignment of error claimed by appellant is that the court erred in refusing to instruct the jury that, if the evidence so warranted, they might find the defendant guilty of the lesser offense of unlawful possession of intoxicating liquor.

The court refused this instruction for the reason stated, that, a sale having been testified to by the state's witness, the appellant, if guilty at all, was guilty of the crime charged in the information, or a felony.

It is true that we have said that the bootlegging statute is one against the peddling of liquor as a business, and that unlawful possession of liquor is one of the essential elements of the crime of being a bootlegger. State v. Hessel, 191 P. 637.

In this case, however, the testimony of the state's principal witness, Hatvedt, that he had purchased one drink, at the time alleged, from appellant, which was delivered to him in a glass in the rear of a pool hall, and that the liquor delivered to him by appellant was moonshine whisky, there being no other evidence of the possession of any unlawful liquor by appellant except that delivered to the state's witness, the offense charged was either consummated by the sale to the state's witness as testified to or there was no offense committed at all. In other words, unless appellant consummated the crime of having intoxicating liquor in his possession and carrying it about with him with intent to sell as evidenced by the fact that he did sell then and there to the state's witness, he had no liquor at all; and there is no justification for instructing the jury that they might find the defendant guilty of the lesser offense of the unlawful possession of intoxicating liquor.

While we have always held that the jury has a right, under our Criminal...