State v. Tweedy, 23397.
| Decision Date | 20 November 1931 |
| Docket Number | 23397. |
| Citation | 5 P.2d 335,165 Wash. 281 |
| Parties | STATE v. TWEEDY. |
| Court | Washington Supreme Court |
Department 1.
Appeal from Superior Court, Clark County; Geo. B. Simpson, Judge.
Roy E Tweedy was convicted of contributing to the dependency of minors, and he appeals.
Reversed and remanded.
Jas. O Blair, of Vancouver, for appellant.
Dale McMullen and Claude C. Snider, both of Vancouver, for the State.
The appellant and his son Donald, who is twenty years of age, by information were jointly charged, in counts I and III, with giving intoxicating liquor to two minors, girls, thirteen and fifteen years of age respectively, and in counts II and IV with contributing to the dependency of those minors. The son entered a plea of guilty to all four counts. The father entered a plea of not guilty. At the trial of the cause, he was acquitted on counts I and III, but convicted on counts II and IV. Appellant's motion for a new trial being overruled, judgment and sentence was pronounced on the verdict. This appeal followed.
Six errors are assigned: (1) Insufficiency of the evidence to support the verdict; (2) that the state failed to prove venue; (3) the refusal of the court to strike the testimony of the younger girl adduced on rebuttal; (4) overruling appellant's motion for a new trial; (5) misconduct on the part of the prosecuting attorney; and (6) giving instruction No. 8 to the jury. We shall dispose of these assignments in the order enumerated.
There was competent evidence offered from which the jury was warranted in finding that the appellant resides at 1719 West Twenty-Third street in Vancouver, Wash., and operates the Evergreen Drug Store clocated at Fifth and Main streets in that city; that at about 2:30 o'clock on the afternoon of December 1, 1930, the appellant and his son Donald left appellants' home for the purpose of returning to the drug store, and, on reaching the sidewalk in front of appellants' residence, they met two girls; the prosecuting witnesses. A brief conversation occurred between the girls and Donald, whereupon he and his father got into the front seat and the two girls into the rear seat of appellant's automobile. The car was then driven to within one city block of the drug strore, where the father got out and walked to the store. It appears that the parents of the younger girl conducted transfer business within a few yards of appellant's store. Donald and the two girls drove about the city of Vancouver for a short time and then returned and stopped in front of appellant's store where the son got out, went into the store, and returned with some cigarettes. Thereupon the son and the two girls drove to East Vancouver where he purchased a bottle of moonshine whisky. On returning to the car, he gave the liquor to the older girl. These three young people them drove to the Evergreen Hotel arriving there at some time between 3 and 3:30 p. m. The two girls then went into the lobby of the hotel and Donald, after he had parked the car, also went to the hotel and registered under the name of 'Johnson,' and was assigned to room 214. The two girls and Donald went to this room, and presently he telephoned to his father at the drug store, who brought two bottles of Canada Dry and four glasses. Drinks were mixed, and the father and the son and the two girls partook of these refreshments. The younger girl drank sparingly, but the older girl imbided quite freely. While in the room, the father drew the older girl onto his lap, kissed her, and pinched her leg. He also kissed the younger girl. The record is not clear as to the length of time the father remained in room 214. At any event, some time between 5 and 5:30 that afternoon the older girl became hilarious and boisterous, and Donald again telephoned to his father stating that the older girl was 'loppy.' Thereupon the father, using his own language, 'mixed some aromatic spirits of ammonia in a glass and headed up there as fast as I could.' This drink temporarily quieted the older girl, and thereupon both girls were then taken by Donald to the home of the younger girl. Later that evening the older girl in company with two boys about eighteen years of age returned to the Evergreen Hotel and inquired for Donald, who, it appears, was not there at that time. These boys and the older girl met the appellant at or near his drug store, and he procured the key to room 214 and admitted the girl and her two boy companions to the room.
There is no merit to appellant's first contention that the evidence is insufficient to sustain the judgment. These two young girls were in room 214 with Donald at the time the appellant arrived with the four glasses and the two bottles of Canada Dry. Finding his son in the presence of these two young girls, he made no protest or objection. But on the contrary drank with them, and smoked cigarettes with them. He took the older girl onto his lap and kissed her. He kissed the younger girl. There is also competent evidence from which the jury was justified in finding that the appellant told 'dirty stories' in the presence of these girls. True, the appellant and his son Donald denied the testimony of the two girls, but, under the facts and circumstances, it was for the jury to say whether the appellant's conduct was such as to encourage and cause these two minors to grow up to lead idle, dissolute, and immoral lives.
Appellant next contends that the state failed to prove venue. The mother of the older girl was asked:
She also testified that her daughter attended the Shumway High School, and was asked:
A sister of the younger girl was asked:
'Q. Where do you live? A. 2801 W Street.
'Q. Here in Vancouver? A. Yes.
The older girl, while on the stand, was asked:
Culbertson, a witness for appellant, testified:
Thus it appears that the mother of the older girl testified that the Shumway High School is located in Vancouver, Wash., and that the Evergreen Hotel is located in Clark county. Both of the girls testified that the Shumway Junior High is ocated in the city of Vancouver. There is other testimony in the record of the same tenor. The information was filed and the trial was held in the superior court of Clark county, in Vancouver, Wash. We are satisfied that the venue was sufficiently proven under the prior decisions of this court. State v. Chin Sam, 76 Wash. 612, 136 [165 Wash. 286] P. 1146; State v. Heppell, 148 Wash. 664, 269 P. 1046.
The appellant next contends that the trial court erred in refusing to strike the testimony of the younger girl called by the state in rebuttal, who was asked. ' This testimony was admitted without objection. The appellant immediately moved to strike it on the ground that it was not proper rebuttal testimony. It is sufficient to say in this regard that Donald, called as a witness in behalf of his father, not only undertook to contradict the testimony of the two girls, but also testified affirmatively that, after he had registered at the hotel, he told the girls to go to the mezzanine floor. Donald's testimony as a whole was calculated to impress upon the jury the fact that the younger girl must have had considerable experience in and about public hotels prior to December 1, 1930. Appellant concedes that this testimony would have been proper if introduced by the state in its case in chief. In view of the nature of Donald's testimony, we are of the opinion that the ruling of the trial court was correct.
The appellant next contends that he was denied a fair trial by reason of misconduct on the part of the prosecuting attorney and the trial judge. We have carefully read the entire record and find no showing of misconduct on the part of the learned trial judge.
Now as to the conduct of the prosecuting attorney. It appears that the appellant had caused a subpoena to be placed in the hands of the sheriff of Clark county to be served upon one W. R. Newell, in intended witness for the appellant. The sheriff, however, did not serve the subpoena. The appellant on direct examination testified that Newell was employed as bell boy at the Evergreen Hotel on December 1, 1930. The prosecuting attorney on cross-examination inquired of the appellant whether he knew the whereabouts of Newell, who stated he did not. On the following day, near the close of the case, the prosecuting attorney called the sheriff as a witness on rebuttal, and the following occurred:
'
'Mr. Blair: I object to the witness testifying to what he has been told.
'The Court: Sustained.
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State v. Case
...Smith, 1937, 189 Wash. 422, 65 P.2d 1075, or held that an instruction actually given did not cure the prejudicial error. State v. Tweedy, 1931, 165 Wash. 281, 5 P.2d 335; State v. Carr, 1930, 160 Wash. 83, 294 P. 1016; State v. Bozovich, 1927, 145 Wash. 227, 259 P. We summarize the issues h......
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...attained, is unjust and dangerous to the whole community.' Hurd v. People, 25 Mich. 405.' A similar situation arose in State v. Tweedy, 165 Wash. 281, 5 P.2d 335, 338, where the prosecutor sought to show that a witness subpoenaed by the defendant was then in jail. We granted a new trial 'It......
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