State v. Walters

• Citation: 7 Wash. 246,34 P. 938
• Parties: STATE v. WALTERS. [1]
• Decision Date: 11 November 1893
• Court: United States State Supreme Court of Washington

34 P. 938

7 Wash. 246

STATE v. WALTERS. ^[1]

Supreme Court of Washington

November 11, 1893

Appeal from superior court, Lincoln county; Wallace Mount, Judge.

Thomas Walters was convicted of larceny, and appeals. Reversed.

N. T. Caton and C. S. Voorhees, (Jones, Voorhees &amp Stephens, of counsel,) for appellant.

J. W Merritt, for the State.

ANDERS J.

On the trial of an information charging the defendant and one George Gibbons with the crime of horse stealing, the defendant having been separately tried, was convicted, and sentenced to imprisonment in the state penitentiary for the term of five years. He brings the cause to this court for review upon exceptions reserved and errors assigned. The alleged errors relate mainly to the instructions given by the court to the jury, but objection is made to the decision of the court in overruling appellant's objection to the evidence of one Vent, offered for the purpose of impeaching William Johnson on the ground that no proper foundation had been laid for the introduction of such testimony. When Johnson was on the witness stand he was asked if he remembered having a conversation with Mr. Vent down in what is known as Jim Campbell's saloon last July, in reference to this case; and if he did not then make certain statements, which counsel for the state repeated, and which the witness denied that he made. Subsequently Vent was called as a witness, and interrogated as to what Johnson said in the conversation alluded to. The court permitted the witness, over appellant's objection, to detail certain statements which he testified Johnson made to him at this saloon, and which were substantially the same statements that Johnson denied having made. It is claimed on behalf of the appellant that "time, place, and circumstance" were by no means sufficiently indicated in the question propounded to Johnson to justify the admission of the testimony given. While the particular circumstances and the exact time of the supposed conversation were not called to the attention of of the witness on his cross-ex amination, still we think his attention must have been so directed to the particular statements in regard to which he was interrogated that he was in no way prejudiced or harmed by the ruling of the court. The record shows that the objection made by the defendant at the trial was that the time of the alleged conversation was not sufficiently specified, not that the "place and circumstance" were not designated. It may be that the exact hour or day of the week or month was unknown, yet the court would not have been justified, under such circumstances, in rejecting the testimony on that ground alone.

We now come to the consideration of those portions of the court's charge to the jury which appellant claims were erroneous, and which legally entitle him to a new trial. While attempting to convey to the minds of the jury that it was not necessary to prove that a crime was committed on the exact day alleged in the information, but that the proof of any time within the statute of limitations would be sufficient, the trial judge remarked that "it is only necessary to allege the date in order to identify the crime." The objection made to this language is that the court thereby assumed, and so told the jury, that a crime had been committed. The remark was a general one, and no doubt was not intended by the judge as an expression of his opinion upon the weight or effect of the evidence in the case before him. Nor do we think the jury could have understood the court as saying or intending to say that the crime charged in the information, or any crime, had been committed. While the expression was perhaps not as apt as it might have been, the idea evidently intended to be conveyed was that it was only necessary to allege a date in an information in order to show that the acts constituting the crime, as therein set forth, were done at some time within the statute of limitations, and thus to "identify" the crime charged as one for which the accused might be legally tried.

The following instruction is also complained of by the appellant "But if the defendant was not guilty, and if you find from the testimony that he was not assisting in the theft of the horses stolen by Gibbons, then he would not be guilty of the offense charged in the information simply by reason of his assisting Gibbons in shipping the horses out of the country." It appears by the testimony of Gibbons that he himself had been convicted of the theft of the horses, and that the appellant was likewise concerned in the larceny, and assisted him, Gibbons, in shipping the stolen horses to the state of Illinois; but it also appears that Gibbons admitted on cross-examination that while testifying in his own behalf on his trial for stealing these same horses he then swore, in substance, that appellant had nothing to do with the larceny, but...