State v. Ulsemer

• Decision Date: 20 April 1901
• Parties: STATE v. ULSEMER.
• Court: Washington Supreme Court

64 P. 800

24 Wash. 657

STATE v. ULSEMER.

Supreme Court of Washington

April 20, 1901

Appeal from superior court, Spokane county; Leander H. Prather Judge.

Louis Ulsemer was convicted of circulating an indecent picture, and he appeals. Affirmed.

Robertson & Miller, for appellant.

James Z. Moore, Miles Poindexter, and Horace Kimball, for the State.

REAVIS C.J.

Appellant was charged with having circulated an indecent picture in Spokane. The portion of the information material for consideration is as follows: 'That the said Louis Ulsemer, on the 2d day of August, A. D. 1899, in the county of Spokane, state of Washington, then and there being, did then and there unlawfully, feloniously, willfully, knowingly wickedly, and designedly distribute a certain indecent picture.' Appellant entered a plea of not guilty to the information. No demurrer was interposed. At the trial a verdict of guilty was rendered. Motions for a new trial and in arrest of judgment were filed and overruled. Appellant objected to any testimony under the information, because it did not state facts sufficient to charge the crime of circulating an indecent picture. The contention is that the information is insufficient because it does not charge that appellant knew the matter distributed by him was indecent and that such knowledge was an essential element of the offense. We are satisfied that the word 'knowingly,' in the information, sufficiently charges knowledge of the indecency of the picture. This principle of construction has been determined by this court in State v. Holedger, 15 Wash. 443, 46 P. 652, and State v. De Paoli, 63 P. 1102.

The defendant offered himself as a witness, and was sworn to testify. Several questions were propounded to him by his counsel, but, upon objection by counsel for the state, he was not permitted to answer them. Afterwards, in the course of the argument, counsel for the state mentioned the defendant's offer to testify, and that he did not deny knowledge of the indecency of the picture, and the court also instructed that the testimony of the defendant should be weighed as that of any other witness. This action of the court and counsel is assigned as error. The court had denied the right of the state to cross-examine the defendant. It was said in State v. Duncan, 7 Wash. 336, 35 P. 117: 'When a defendant in a criminal case takes the witness stand, he assumes the character of a witness, * * * the same as any other witness.' Defendant in the language of the statute, 'offered' himself as a witness, and was sworn. The testimony which his counsel endeavored to elicit from him was not admitted, and, upon objection, no...