ÆäÀÌÁö À̹ÌÁö
PDF
ePub

rect testimony of one witness and corroborat- the appeal, is untimely and cannot be considing circumstances established by independent ered. evidence, clearly overcoming accused's testimony and the presumption of his innocence.

[Ed. Note.-For other cases, see Perjury, Cent. Dig. §§ 125-132; Dec. Dig. § 34.*] 8. CRIMINAL Law (§ 1171*)—MISCONDUCT OF PROSECUTOR.

In a trial for perjury by a mortgagee in falsely testifying that the note and mortgage were not altered as to amount, it was not reversible error for the prosecutor to ask a witness if he heard the mortgagor testify in another suit that the "note and mortgage were not drawn for the sum of" where the question was there interrupted on the accused's objection and the jury were instructed not to consider it.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 3126, 3127; Dec. Dig. 8

1171.*]

9. CRIMINAL LAW (§ 1037*)—IMPROPER ARGUMENT-PRESERVATION OF OBJECTIONS.

No error can be based upon improper argument to the jury, where no motion is made to strike it and no instruction to disregard it

is asked.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 1691, 2645; Dec. Dig. § 1037.*]

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 2732; Dec. Dig. § 1083.*]

Department 1. Appeal from Superior Court, Walla Walla County; Chester F. Miller, Judge.

Harvey Smails was convicted of perjury, and he appeals. Affirmed.

Zent & Cannon and Sharpstein & Sharpstein, for appellant. Everett J. Smith, for the State.

FULLERTON, J.

In February, 1910, the appellant Smails was informed against by the prosecuting attorney of the county of Walla Walla for the crime of perjury in the first degree; the charging part of the information being as follows: "Everett J. Smith, prosecuting attorney of and for the county of Walla Walla, in the state of Washington, on behalf of said state, accuses Harvey Smails of the crime of perjury in the first degree, and informs the court that at the courthouse in Walla Walla, the county seat of said county, on the 12th day of January, 1910, in and before the superior court of said state for said county, there came on for trial a certain civil action between one Maude [Ed. Note.-For other cases, see Criminal Aubian, as plaintiff, and Harvey Smails and Law, Cent. Dig. § 1603; Dec. Dig. § 674.*] John D. Walter, as defendants, for the an11. CRIMINAL LAW (§ 829*)-TRIAL-REFUSAL nullment and cancellation of a certain inOF INSTRUCTIONS. In a criminal case, it was not error to re-strument purporting to be a mortgage upon fuse instructions substantially covered by those given.

10. CRIMINAL LAW (§ 674*)-RECEPTION OF EVIDENCE.

It was proper to exclude a question asked a witness, where his preceding testimony showed that his answer could throw no light on the issue.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. § 829.*] 12. PERJURY (§ 37*)-INSTRUCTIONS. An instruction authorizing a conviction for perjury on a finding that the testimony relied was substantially false was not erroneous for failing to point out the part of the testimony deemed substantial, where no exception was taken to another instruction stating that all the testimony imputed to accused was ma

on

terial.

[Ed. Note. For other cases, see Perjury, Cent. Dig. §§ 134-138; Dec. Dig. § 37.*] 13. PERJURY (§ 29*)-PROOF REQUIRED.

In a perjury trial the state need not prove all the matter imputed to accused precisely as alleged; the substance thereof being requisite.

certain lands situate in said county and owned, or alleged to be owned, by the said Maude Aubian, to secure the payment by her, the said Maude Aubian, to the said

Harvey Smails, of a certain promissory note for the principal sum of $2,250, upon which trial it became and was a material question whether the said note and mortgage were made, signed, executed, acknowledged, and delivered to him, the said Harvey Smails, by her, the said Maude Aubian, as and for a note and mortgage for said principal sum of $2.250, or whether she, the said Maude Aubian, made, signed, executed, acknowledged, and delivered to him, the said Harvey Smails, at the date said purported note and mortgage bore, a note and mortgage for the principal sum of $250, and no more, and whether said last-mentioned note and mort

[Ed. Note.-For other cases, see Perjury, Cent. Dig. §§ 97-106; Dec. Dig. § 29.*] 14. CRIMINAL LAW (§ 931*)-TRIAL-MISCON-gage had been, after being so made, signed, DUCT OF WITNESS-OBJECTION-TIMELINESS. Objection in a prosecution before a special judge that the regular judge, as a witness, mingled with other witnesses for the state, manifesting such interest in them as to prejudice accused before the jury, first made on motion for a new trial, is too late.

executed, acknowledged, and delivered, was without the knowledge or consent of her, the said Maude Aubian, materially altered so as to be and represent a note and mortgage for the principal sum of $2,250, and whether the same, after being so altered, were or were not the aforesaid purported note and mort

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 2136; Dec. Dig. § 931.*] 15. CRIMINAL LAW (§ 1083*)-APPEAL-SUB- gage so sought to be adjudged and declared SEQUENT PROCEEDINGS-MOTION FOR NEW TRIAL.

null and void, and by such adjudication and A second motion for new trial certified judicial declaration, to be so canceled, and from the lower court and based on the prose- thereupon he, the said Harvey Smails, then cuting witness' affidavit, made after taking of and there, on the said 12th day of January, For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

when giving said testimony, in its then present form, nor as for a mortgage to secure the payment of said or any note for the said principal sum of $2,250, or a note for any other or greater sum than $250; that said Maude Aubian, as he, the said Harvey Smails, well knew when giving said testimony as aforesaid, did not at the time and place specified by him, the said Harvey Smails, in his said testimony, or at any other time or place request him, the said Harvey Smails, to loan her the said sum of $2,250, or any other or greater sum than $250; that as he, the said Harvey Smails, well knew when giving said testimony as aforesaid, he, the said Harvey Smails, did not at the time and place so specified by him in said testimony, direct said Joseph F. Eades to draw said note and mortgage, or either of them, for said sum of $2,250 in the presence of her, the said Maude Aubian; and that said note and mortgage were not, nor was either of them, so drawn by said Joseph F. Eades and signed by her, the said Maude Aubian, in their or its form at the time of giving said testimony by him, the said Harvey Smails, or for said sum of $2,250, or for any other or greater sum than $250, as he, the said Harvey Smails, then and there well knew; and that he, the said Harvey Smails, then and there and thereby committed the said crime of perjury, in the first degree, contrary to the form, force, and effect of the statute in such cases made and provided, and against the peace and dignity of the state of Washington."

1910, appeared in this, the said superior as he, the said Harvey Smails, well knew court, at and during the said trial, as a witness in behalf of himself, the said Harvey Smails, and his said codefendant, and as such was sworn by the said court, in due form of law, that the evidence he should give in said cause and issue should be the truth, the whole truth, and nothing but the truth, which said oath was duly administered to him, the said Harvey Smails, by the Honorable Thomas H. Brents, the judge of said court, then and there presiding over said trial, the said court then and there having jurisdiction of said cause, and the said court and judge then and there having lawful authority to administer said oath; and the said Harvey Smails then and there, as such witness in said court and cause, upon said trial, and upon his said oath, so administered as aforesaid, willfully, corruptly, knowingly, falsely, and contrary to his said oath, testified in said cause and issue, then and there on trial in and before said court as aforesaid, in substance and effect, that said note was made, signed, executed, and delivered to him, the said Harvey Smails, by the said Maude Aubian at his office in Seattle, on the day of its date, in its then present form, as and for a note for the principal sum of $2,250; that said mortgage was, at said time and place, made, signed, executed, acknowledged, and delivered to him, the said Harvey Smails, by her, the said Maude Aubian, in its then present form and as and for a mortgage to secure the payment of said note as described by him, the said Harvey Smails, in his testimony aforesaid, for the said sum of $2,250; that said Maude Aubian came to his said office at the time and requested him, the said Harvey Smails, to loan her, the said Maude Aubian, the said sum of $2,250; that he, the said Harvey Smails, then and there in the presence of her, the said Maude Aubian, directed one Joseph F. Eads, who was then and there present in said office, to draw said note and mortgage for said sum; that the same were so drawn by the said Joseph Eads and signed by said Maude Aubian in their said form and for said sum, and not for and as a note and mortgage for the sum of $250; that said testimony, and each and every part thereof, was, when so given by him, the said Harvey Smails, as aforesaid, material to said issue and wholly false; that, in truth and in fact, as he, the said Harvey Smails, then and there well knew, said note was not made, signed, executed, or delivered to him, the said Harvey Smails, by the said Maude Aubian in its then present form, nor as for a note for the principal sum of $2,250, or otherwise than as and for a note for the principal sum of $250; that said mortgage was not made, signed, executed, acknowledged, or delivered by her, the said Maude Aubian, to him, the said Harvey Smails, at the time and place so stated by him, the said

On being arraigned the appellant entered a plea of not guilty to the information, and in due course a trial was had on the issue thus made, which resulted in his conviction and sentence to the state peniteniary. This appeal followed.

It is

[1] Taking up the assignments of error in the order in which the appellant presents them, the first to be noticed is the contention that the information does not state facts sufficient to constitute a crime. argued that the information fails to show wherein the testimony alleged to have been given by the appellant in the civil action was false, that it does not clearly point out the material testimony upon which the state relies for a conviction, and that it does not set forth what portion of the testimony alleged to have been given was known by the appellant to be false. But we think the information sufficiently definite in these respects. It sets out the false testimony given at the trial of the civil action, and asserts its falsity not only by negation but by setting out the true facts by way of antithesis. This is a sufficient negation of the truth of the testimony given, under all of the authorities.

[2] The claim that knowledge on the part of the appellant of the falsity of his testimony is not sufficiently alleged is equally with

reference to the information that the pleader [6] The one of necessity shades into the not only charged the appellant with having "willfully, corruptly, knowingly, and falsely" testified to a certain state of facts, but he also charged him with knowledge of each particular fact alleged to negative the truth of the statement made by the witness. would seem that the allegation could hardly have been made more definite.

It

On the trial the state sought to prove that the note and mortgage which was the subject of controversy in the civil action in which the perjury was charged to have been committed was given as a note and mortgage for the sum of $250, and had been subsequently altered so as to make it appear to be a note and mortgage for $2,250. To that end it called certain expert witnesses who were allowed to testify, over the objection of the appellant, that in their opinion the first figure "2" in the number "2250" was written at a different time and under different circumstances from that under which the remainder of the figures were written, and that the word "twenty" preceding the words "two hundred and fifty" was written at a different time and under different circumstances from that under which the words "two hundred and fifty" were written; also, that in ⚫ the mortgage the word "twenty," in the two places where it precedes the words "two hundred and fifty," was written at a different time and under different circumstances from that under which the other words were written. To this evidence the appellant makes two objections: First, that the witnesses themselves were not qualified to testify as to the matter; and, second, that the subjectmatter of the inquiry itself was not such as called for expert testimony.

[3] As to the first objection, the witnesses offered were shown to be bankers and accountants of long standing, having an extended experience in dealing with commercial paper and securities of the character of that in question in this case, and that a part of their duties was to detect irregularities of the nature of those in question.

[4] There is no fixed criterion by which an expert can be determined. If he is shown to have peculiar skill and knowledge concerning the subject of the inquiry gained by observation, personal experience, or study, not possessed by men in the common walks of life, he is an expert upon that subject and is competent to give an opinion thereon. The witnesses in the case measure up to this test, and in our judgment were competent to testify.

[5] The, contention that the evidence itself was inadmissible presents a question of more difficulty, yet we think the lower court correctly resolved it. The line of demarcation between matters that fall within the knowledge of mankind generally and matters that are the subject of special and peculiar knowledge cannot from the nature of things be very accurately drawn.

other, and hence, even though the extremes of the opposing rules may be definitely marked and error predicated thereon easy of determination, the trial judge must have something of discretion whether he will or will not admit opinion evidence when the line of demarcation between these rules is approached. Now it is the almost universal authority that a witness duly qualified may testify that in his opinion a given writing is or is not the writing of the person by whom it was purported to have been written, but is the writing of another; or, in other words, he may testify not only that a given writing is or is not a forgery, but that it was or was not forged by a particular person. It would seem therefore by analogy that an expert witness might legally testify that in his opinion a part of a given writing, although concededly written by the person by whom it is purported to have been written, was written at a different time, under different circumstances, with a different pen, or with different ink, from that with which other parts of the same writing were written. Such matters are to our minds at least matters of special and peculiar knowledge rather than knowledge common to mankind in general. While the authorities on the particular question are not entirely uniform, we think the greater weight is with the ruling of the trial judge. In 15 Am. & Eng. Enc. of Law, 278 et seq., the rule is stated as follows: "It seems that an expert may testify as to any matter bearing upon the genuineness of a disputed writing regarding which an opinion can be formed from an inspection of the writing itself. Thus he may testify as to the characteristics of the handwriting in question; as to whether the writing is natural or feigned; as to alterations, additions, or erasures; as to whether the whole of an instrument was written by the same hand, with the same pen and ink, and at the same time; as to whether two instruments or signatures were written with the same ink; as to whether an instrument was written with a pen; or as to the age of a writing."

In Quinsigamond Bank v. Hobbs, 11 Gray (Mass.) 250, it was held competent to permit an expert witness to testify whether the whole of a promissory note was written at the same time. So in Glover v. Gentry, 104 Ala. 222, 16 South. 38, the question was whether a promissory note had been altered from a note for $80 to one for $1,280 by writing therein subsequent to its execution the words "twelve hundred and" before the word "eighty," and it was held competent to permit experts to give it as their opinion that the words, "twelve hundred and" were written in a different ink, at a different time, and in a different hand, than was the word "eighty."

In Tally v. Cross, 124 Ala. 567, 26 South. 912, it was held competent for an expert wit

ness to testify that in his opinion two papers where he knows the handwriting of the perwere written at the same time.

son whose writing is in question, and also In Bridgman v. Corey's Estate, 62 Vt. 1, 20 that it is competent for an expert to make Atl. 273, it was held that one having skill comparison between the disputed signature and experience in the use of a compound mi- and a genuine signature and give his opincroscope could testify that an examination ion whether the disputed signature is genuof a disputed note through the microscope ine or not. Moore v. Palmer, 14 Wash. 134, showed traces of pencil marks on the paper 44 Pac. 142; Poncin v. Furth, 15 Wash. 201, on which the note was written, and that the 46 Pac. 241. fiber of the paper had the appearance of having been broken or rubbed off before the ink was laid thereon, notwithstanding both the note and microscope were before the jury, and the matter testified to subject to their inspection

The cases on the other side, we shall not review. Those thought to bear upon the question will be found collected in the briefs of the appellant's learned counsel. Without further inquiry, therefore, we conclude that the court did not err in admitting the evidence of which complaint is made.

[7] The third assignment of error is based upon the ruling of the trial court refusing to withdraw the case from the consideration of the jury. But in our opinion the testimony was ample to sustain the conviction. There was not, it is true, the direct testimony of two witnesses to the perjury; but there was the direct testimony of one witness, and corroborating circumstances established by independent evidence of such a character "as clearly to turn the scale and overcome the oath of the defendant and the legal presumption of his innocence," if the jury believed the evidence. This was sufficient under the rule announced by us in State v. Rutledge, 37 Wash. 523, 79 Pac. 1123.

In Vinton v. Peck, 14 Mich. 287, one of the questions at issue was whether or not the note which was the subject-matter of the action had been changed from a note of $8 to a note of $80 by adding the letter “y” to the word "eight." One Clark was called as a witness and was permitted to testify that in his opinion the note had not been so altered, giving as his reason for the conclusion that the letter "y" could not have been added because of its relation to other letters. This was assigned as error, and the court passing on the assignment used the following language: "This testimony was proper. The witness was engaged in a business which would be quite apt to familiarize him with all the ordinary appearances of writings, and the addition of a letter, after a document had been finished, is so generally [8] During the cross-examination of the apadapted to give it a peculiar and recogniz- pellant's witness Joseph F. Eads, the followable appearance, that no great amount of ex-ing occurred: "By the Prosecuting Attorperience would be necessary to detect it in ney: Q. At the time this mortgage was ordinary cases. The value of a witness' be- signed by Mrs. Aubian, where did you find lief must depend upon circumstances, but her? At the time the affidavit was signed? it is proper to go to the jury like other ques- A. I was down to see a client of mine in the tions upon the genuineness of writings. It is Miner Hospital-to see a client of mine, and very true that the jury may examine the pa- while I was there Mrs. Aubian was there, per for themselves, and that opinions are not or she came after I was there, and I had usually admissible where the jury can form this affidavit at this time, and we went outtheir own conclusions unaided. But we do side and I told her about it. She had asked not think it would be safe in this country to me when she would get this matter settled adopt a rule which assumes such a degree up and get her money, and I told her then of knowledge and skill among jurors. Even that as soon as this matter went back there reasonably expert writers may obtain valu- she would get what was coming to her then. able aid from opinions on such questions, Q. Who was the client? A. Miss Mitchell. and, as neither law nor custom requires our Q. Do you know where she is now? A. I juries to meet any standard of education, we do not know where she is now. Q. Have think that to exclude such aid would lead to you seen her since the civil case here? A. absurd results. The most enlightened courts Yes, sir. Q. Where? A. In Seattle. Q. She have availed themselves of such assistance, is a client of yours? A. Yes, sir; I supposand we deem it wise to use it in all cases ed she would be here at this trial, and I am where it is at hand." sorry she is not. Q. You are sorry she is not? A. Yes, sir. Q. You heard her testimony in the court below? A. Part of it; 1 Portland when the case was going You heard her testify that this

See, also, Dubois v. Baker, 40 Barb. (N. Y.) 556; Ballentine v. White, 77 Pa. 20; Eisfield v. Dill, 71 Iowa, 442, 32 N. W. 420; Cox went to v. Dill, 85 Ind. 334; Moye v. Herndon, 30 on. Q. Miss. 110; Rogers v. Tyley, 144 Ill. 652, 32 note and mortgage was not drawn for the N. E. 393.

In this state the precise questions seem not to have been decided; but we have held that an expert in handwriting may testify

sum of

(interrupted) Mr. Zent: I ask that the prosecuting attorney be reprimanded and that the jury be instructed to disregard what the attorney has said. The

stricken out, and the jury instructed not to consider it as a part of the evidence in the case."

This is assigned as improper conduct on the part of the prosecuting attorney, and a reversal is asked because thereof. But we think there was nothing here on which to predicate reversible error. The cross-examination was proper enough down to the last question, and counsel's objection to that was promptly sustained, and the jury told not to consider it as part of the evidence in the case. It is to be presumed that the jurors, as sensible and intelligent men, obeyed the instruction of the court and disregarded the insinuation the question contained, rather than that they drew any unwarranted inferences therefrom. The cases cited by counsel in support of this claim of error, namely, Baldwin v. Grand Trunk Ry. Co., 64 N. H. 596, 15 Atl. 411, Bullard v. Boston & M. R. R., 64 N. H. 27, 5 Atl. 838, 10 Am. St. Rep. 367, and Turner v. Muskegon Machine & Foundry Co., 97 Mich. 166, 56 N. W. 360, are cases where an abuse of the privilege of cross-examination was carried to extreme lengths; yet it seems to us that in each of them the court in finding grounds for reversal on the matter that is recited in the record went to the verge of the rule.

[9] In this same connection it is argued that the prosecutor's argument to the jury at the close of the case was so intemperate as to amount to misconduct; but we do not find that the objection to the address, if any was made in the court below, was preserved in the record. No error can be founded on improper argument of counsel to the jury where no motion is made to strike it, or the court asked to instruct the jury to disregard it. State v. Regan, 8 Wash. 506, 36 Pac. 472; State v. Bailey, 31 Wash. 89, 71 Pac. 715; State v. Van Waters, 36 Wash. 358, 78 Pac. 897; State v. Wong Tung Hee, 41 Wash. 623, 84 Pac. 596; State v. Hawkins, 27 Wash. 375, 67 Pac. 814; Taylor v. Modern Woodmen of America, 42 Wash. 304, 84 Pac. 867.

[10] J. C. Robinson was called as a witness for the defense and was interrogated by the defendant's counsel and made answers as follows: "Q. I hand you plaintiff's Identification I, known as the 'mortgage'. I will ask you if you are the notary who signed that as a witness and acknowledged it? A. Yes, sir. Q. Did you notice that document at the time you signed it as a notary public? A. I did to a certain extent; yes, sir. Q. Are you able to state how much that mortgage was written for at that time? A. No, sir. Q. Do you know about how much it was? A. I could not swear to it. Q. Did you make any examination of the mortgage at that time? A. I usually make a pretty close scrutiny of every paper I sign. This has been a good while ago. Q. What do you say now as to whether that mortgage was written for $250 or $2,250? A. I could not

swear as to either, whether it was $250 or $2,250. Q. You got no impression as to the amount of the mortgage from the examination you made? Mr. Smith: I object. He said he could not testify positively; it would be a mere guess. (Objection sustained.)"

The refusal of the trial judge to permit an answer to the last question is assigned as error. But the ruling was proper. From the answers to the preceding questions it is plain that any answer the witness could have made to this would have thrown no light upon the question at issue.

[11] A number of errors are assigned on the instructions given by the court and the refusal to give certain others requested by the defendant. These it would be unprofitable to notice in detail. As a whole the instructions fully and fairly state the law of the case to the jury, and cover all that is material in the requested instructions submitted by the defendant.

Counsel, however, argue one exception to the instructions with much earnestness, and this we will briefly notice. The court in its charge first outlined to the jury the testimony alleged in the information to be false and perjured and to have been given by the defendant on the trial of the civil action be tween Maude Aubian and himself, and then instructed them that all the testimony imputed to the defendant was material to the inquiry the court was authorized and required to make in deciding that case. Further on it outlined the several essential facts the jury must find in order to find the defendant guilty; the sixth of these being that the jury must find that the defendant, in the trial of the civil action, after being sworn, took the witness stand and gave the testimony imputed to him by the information, or gave "some substantial part of it." And during the remainder of the charge, in every place where the court had occasion to refer to the testimony given by the defendant as set forth in the information, it charged the jury to the effect that it was not necessary that they find that the defendant gave all the testimony imputed to him by the information, but that it was sufficient if they found that he gave some substantial part of the testimony so imputed to him. The defendant excepted to so much of the charge as stated that it was sufficient if the jury found that the defendant gave some substantial part of the testimony imputed to him in the information, but did not except to the sufficiency of the summary of the charge contained in the information made by the court, nor to the charge that all of the testimony imputed to the defendant in the information was material to the inquiry in the civil action.

[12] It is argued that the portion of the charge excepted to is error because it does not point out what part of the testimony the court deemed substantial, but allowed the jury to find the defendant guilty if they

« ÀÌÀü°è¼Ó »