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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
[Ed. Note.-For other cases, see Criminal and the presumption of his innocence.
Law, Cent. Dig. $ 2732; Dec. Dig. $ 1083.*] [Ed. Note.-For other cases, see Perjury, Cent. Dig. 125-132; Dec. Dig. $ 34.*]
Department 1. Appeal from Superior 8. CRIMINAL Law (1171*)—MISCONDUCT OF Court, Walla Walla County; Chester F. PROSECUTOR.
Miller, Judge. In a trial for perjury by a mortgagee in falsely testifying that the note and mortgage
Harvey Smails was convicted of perjury, were not altered as to amount, it was not re- and he appeals. Affirmed. versible error for the prosecutor to ask a witness if he heard the mortgagor testify in an
Zent & Cannon and Sharpstein & Sharpother suit that the "note and mortgage were stein, for appellant. Everett J. Smith, for not drawn for the sum of
," where the the State. question was there interrupted on the accused's objection and the jury were instructed not to consider it.
FULLERTON, J. In February, 1910, the [Ed. Note-For other cases, see Criminal appellant Smails was informed against by Law, Cent. Dig. $$ 3126, 3127; Dec. Dig. 8 the prosecuting attorney of the county of 1171.*] 9. CRIMINAL LAW (1037*)—IMPROPER ARGU- Walla Walla for the crime of perjury in the MENT-PRESERVATION OF OBJECTIONS. first degree; the charging part of the infor
No error can be based upon improper ar- mation being as follows: "Everett J. Smith, gument to the jury, where no motion is made prosecuting attorney of and for the county to strike it and no instruction to disregard it of Walla Walla, in the state of Washington, is asked.
[Ed. Note. For other cases, see Criminal on behalf of said state, accuses Harvey Law, Cent. Dig. $$ 1691, 2645; Dec. Dig. & Smails of the crime of perjury in the first 1037.*]
degree, and informs the court that at the 10. CRIMINAL LAW ($ 674*)--RECEPTION OF courthouse in Walla Walla, the county seat EVIDENCE.
It was proper to exclude a question asked of said county, on the 12th day of January, a witness, where his preceding testimony showed 1910, in and before the superior court of said that his answer could throw no light on the state for said county, there came on for trial issue.
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. 8 674.*]
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 certain lands situate in said county and given.
owned, or alleged to he owned, by the said [Ed. Note.--For other cases, see Criminal Maude Aubian, to secure the payment by Law, Cent. Dig. 2011; Dec. Dig. $ 829.*]
her, the said Maude Aubian, to the said 12. PERJURY ( 37*)-INSTRUCTIONS.
An instruction authorizing a conviction for Harvey Smails, of a certain promissory note perjury on a finding that the testimony relied for the principal sum of $2,250, upon which on was substantially false was not erroneous trial it became and was a material question for failing to point out the part of the testi- whether the said note and mortgage were was taken to another instruction stating that made, signed, executed, acknowledged, and all the testimony imputed to accused was ma- delivered to him, the said Harvey Smails, by terial.
her, the said Maude Aubian, as and for a [Ed. Note.-For other cases, see Perjury, note and mortgage for said principal sum of Cent. Dig. 88 134-138; Dec. Dig. $ 37.*]
$2.250, or whether she, the said Maude Au13. PERJURY ($ 29*)-PROOF REQUIRED. bian, made, signed, executed, acknowledged,
In a perjury trial the state need not prove and delivered to him, the said Harvey all the matter imputed to accused precisely as alleged; the substance thereof being req- Smails, at the date said purported note and uisite.
mortgage bore, a note and mortgage for the [Ed. Note.-For other cases, see Perjury, principal sum of $250, and no more, and Cent. Dig. $897–106; Dec. Dig. § 29.*]
whether said last-mentioned note and mort14. CRIMINAL LAW ($ 931*)—TRIAL-MISCON gage had been, after being so made, signed, DUCT OF WITNESS-OBJECTION--TIMELINESS.
Objection in a prosecution before a spe- executed, acknowledged, and delivered, was cial judge that the regular judge, as a witness, without the knowledge or consent of her, the mingled with other witnesses for the state, man- said Maude Aubian, materially altered so as ifesting such interest in them as to prejudice to be and represent a note and mortgage for accused before the jury, first made on motion the principal sum of $2,250, and whether the for a new trial, is too late.
[Ed. Note.--For other cases, see Criminal same, after being so altered, were or were Law, Cent. Dig. § 2136; Dec. Dig. $ 931.*] not the aforesaid purported note and mort15. CRIMINAL LAW ($ 1083*)-APPEAL-SUB- gage so sought to be adjudged and declared
SEQUENT PROCEEDINGS--MOTION FOR New null and void, and by such adjudication and TRIAL.
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
1910, appeared in this, the said superior, as he, the said Harvey Smails, well knew court, at and during the said trial, as a wit- when giving said testimony, in its then presness in behalf of himself, the said Harvey ent form, nor as for a mortgage to secure Smails, and his said codefendant, and as the payment of said or any note for the said such was sworn by the said court, in due principal sum of $2,250, or a note for any form of law, that the evidence he should give other or greater sum than $250; that said in said cause and issue should be the truth, Maude Aubian, as he, the said Harvey the whole truth, and nothing but the truth, Smails, well knew when giving said testimowhich said oath was duly administered to ny as aforesaid, did not at the time and him, the said Harvey Smails, by the Honor- place specified by him, the said Harvey able Thomas H. Brents, the judge of said Smails, in his said testimony, or at any othcourt, then and there presiding over said er time or place request him, the said Hartrial, the said court then and there having vey Smails, to loan her the said sum of jurisdiction of said cause, and the said court $2,250, or any other or greater sum than and judge then and there having lawful au- $250; that as he, the said Harvey Smails, thority to administer said oath; and the said well knew when giving said testimony as Harvey Smails then and there, as such wit- aforesaid, he, the said Harvey Smails, did ness in said court and cause, upon said trial, not at the time and place so specified by him and upon his said oath, so administered as in said testimony, direct said Joseph F. Eaaforesaid, willfully, corruptly, knowingly, des to draw said note and mortgage, or eithfalsely, and contrary to his said oath, testi- er of them, for said sum of $2,250 in the fied in said cause and issue, then and there presence of her, the said Maude Aubian; on trial in and before said court as afore and that said note and mortgage were not, said, in substance and effect, that said note nor was either of them, so drawn by said was made, signed, executed, and delivered to Joseph F. Eades and signed by her, the said him, the said Harvey Smails, by the said Maude Aubian, in their or its form at the Maude Aubian at his office in Seattle, on the time of giving said testimony by him, the day of its date, in its then present form, as said Harvey Smails, or for said sum of and for a note for the principal sum of $2,250, or for any other or greater sum than $2,250; that said mortgage was, at said $250, as he, the said Harvey Smails, then time and place, made, signed, executed, ac- and there well knew; and that he, the said knowledged, and delivered to him, the said Harvey Smails, then and there and thereby Harvey Smails, by her, the said Maude Au- committed the said crime of perjury, in the bian, in its then present form and as and first degree, contrary to the form, force, and for a mortgage to secure the payment of said effect of the statute in such cases made and note as described by him, the said Harvey provided, and against the peace and dignity Smails, in his testimony aforesaid, for the of the state of Washington." said sum of $2,250; that said Maude Aubian On being arraigned the appellant entered came to his said office at the time and re- a plea of not guilty to the information, and quested him, the said Harvey Smails, to loan in due course a trial was had on the issue her, the said Maude Aubian, the said sum of thus made, which resulted in his conviction $2,250; that he, the said Harvey Smails, and sentence to the state peniteniary. This then and there in the presence of her, the appeal followed. said Maude Aubian, directed one Joseph F.  Taking up the assignments of error in Eads, who was then and there present in the order in which the appellant presents said office, to draw said note and mortgage them, the first to be noticed is the contenfor said sum; that the same were so drawn tion that the information does not state hy the said Joseph Eads and signed by said facts sufficient to constitute a crime. It is Maude Aubian in their said form and for argued that the information fails to show said sum, and not for and as a note and wherein the testimony alleged to have been mortgage for the sum of $250; that said tes given by the appellant in the civil action was timony, and each and every part thereof, false, that it does not clearly point out the was, when so given by him, the said Harvey material testimony upon which the state reSmails, as aforesaid, material to said issue lies for a conviction, and that it does not set and wholly false; that, in truth and in fact, forth what portion of the testimony alleged as he, the said Harvey Smails, then and to have been given was known by the appelthere well knew, said note was not made, lant to be false. But we think the informasigned, executed, or delivered to him, the tion sufficiently definite in these respects. said Harvey Smails, by the said Maude Au- It sets out the false testimony given at the bian in its then present form, nor as for a trial of the civil action, and asserts its falsinote for the principal sum of $2,250, or ty not only by negation but by setting out otherwise than as and for a note for the the true facts by way of antithesis. This is principal sum of $250; that said mortgage a sufficient negation of the truth of the teswas not made, signed, executed, acknowledg-timony given, under all of the authorities. ed, or delivered by her, the said Maude Au-  The claim that knowledge on the part bian, to him, the said Harvey Smails, at the of the appellant of the falsity of his testimotime and place so stated by him, the said ny is not sufficiently alleged is equally with
reference to the information that the pleader  The one of necessity shades into the not only charged the appellant with having other, and hence, even though the extremes "willfully, corruptly, knowingly, and false- of the opposing rules may be definitely markly" testified to a certain state of facts, buted and error predicated thereon easy of dehe also charged him with knowledge of each termination, the trial judge must have someparticular fact alleged to negative the truth thing of discretion whether he will or will of the statement made by the witness. It not admit opinion evidence when the line of would seem that the allegation could hardly demarcation between these rules is aphave been made more definite.
proached. Now it is the almost universal On the trial the state sought to prove that authority that a witness duly qualified may the note and mortgage which was the sub- testify that in his opinion a given writing is ject of controversy in the civil action in or is not the writing of the person by whom which the perjury was charged to have been it was purported to have been written, but committed was given as a note and mortgage is the writing of another; or, in other words, for the sum of $250, and had been subse- he may testify not only that a given writing quently altered so as to make it appear to be is or is not a forgery, but that it was or was a note and mortgage for $2,250. To that end not forged by a particular person. It would it called certain expert witnesses who were seem therefore by analogy that an expert allowed to testify, over the objection of the witness might legally testify that in his appellant, that in their opinion the first fig- opinion a part of a given writing, although ure "2" in the number *2250" was written at concededly written by the person by whom it a different time and under different circum- is purported to have been written, was writstances from that under which the remain- ten at a different time, under different cirder of the figures were written, and that the cumstances, with a different pen, or with word “twenty" preceding the words “two different ink, from that with which other hundred and fifty" was written at a differ- parts of the same writing were written. ent time and under different circumstances Such matters are to our minds at least mat- . from that under which the words “two hun-ters of special and peculiar knowledge rathdred and fifty" were written; also, that in er than knowledge common to mankind in • the mortgage the word "twenty," in the two general. While the authorities on the parplaces where it precedes the words “two hun- ticular question are not entirely uniform, we dred and fifty," was written at a different think the greater weight is with the ruling time and under different circumstances from of the trial judge. In 15 Am. & Eng. Enc, of that under which the other words were writ- Law, 278 et seq., the rule is stated as folten. To this evidence the appellant makes lows: "It seems that an expert may testify two objections: First, that the witnesses as to any matter bearing upon the genuinethemselves were not qualified to testify as to ness of a disputed writing regarding which the matter; and, second, that the subject- an opinion can be formed from an inspection matter of the inquiry itself was not such as of the writing itself. Thus he may testify called for expert testimony.
as to the characteristics of the handwriting  As to the first objection, the witnesses in question; as to whether the writing is offered were shown to be bankers and ac-natural or feigned; as to alterations, addicountants of long standing, having an ex- tions, or erasures; as to whether the whole tended experience in dealing with commer- of an instrument was written by the same cial paper and securities of the character of hand, with the same pen and ink, and at the that in question in this case, and that a part same time; as to whether two instruments of their duties was to detect irregularities or signatures were written with the same of the nature of those in question.
ink; as to whether an instrument was writ There is no fixed criterion by which an ten with a pen; or as to the age of a writexpert can be determined. If he is shown to ing.” have peculiar skill and knowledge concerning In Quinsigamond Bank v. Hobbs, 11 Gray the subject of the inquiry gained by observa- (Mass.) 250, it was held competent to permit tion, personal experience, or study, not pos- an expert witness to testify whether the sessed by men in the common walks of life, whole of a promissory note was written at he is an expert upon that subject and is com- the same time. So in Glover v. Gentry, 104 petent to give an opinion thereon. The wit- Ala. 222, 16 South: 38, the question was nesses in the case measure up to this test, whether a promissory note had been alterand in our judgment were competent to tes-ed from a note for $80 to one for $1,280 by tify.
writing therein subsequent to its execution (5) The, contention that the evidence itself the words “twelve hundred and" before the was inadmissible presents a question of more word "eighty,” and it was held competent difficulty, yet we think the lower court cor- to permit experts to give it as their opinion rectly resolved it. The line of demarcation that the words, "twelve hundred and" were between matters that fall within the knowl- written in a different ink, at a different edge of mankind generally and matters that time, and in a different hand, than was the are the subject of special and peculiar word "eighty." knowledge cannot from the nature of things In Tally v. Cross, 124 Ala. 567, 26 South. be very accurately drawn.
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. Voore 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 The cases on the other side, we shall not having been broken or rubbed off before the review. Those thought to bear upon the ink was laid thereon, notwithstanding both question will be found collected in the briefs the note and microscope were before the ju- of the appellant's learned counsel. Without ry, and the matter testified to subject to further inquiry, therefore, we conclude that their inspection
the court did not err in admitting the eviIn Vinton v. Peck, 14 Mich. 287, one of dence of which complaint is made. the questions at issue was whether or not  The third assignment of error is based the note which was the subject-matter of the upon the ruling of the trial court refusing action had been changed from a note of $8 to withdraw the case from the consideration to a note of $80 by adding the letter “y” to of the jury. But in our opinion the testimothe word "eight.” One Clark was called as ny was ample to sustain the conviction. a witness and was permitted to testify that There was not, it is true, the direct testimoin his opinion the note had not been so al- ny of two witnesses to the perjury; but tered, giving as his reason for the conclusion there was the direct testimony of one witthat the letter “y” could not have been add- ness, and corroborating circumstances estabed because of its relation to other letters. lished by independent evidence of such a This was assigned as error, and the court character "as clearly to turn the scale and passing on the assignment used the following overcome the oath of the defendant and the language: “This testimony was proper. The legal presumption of his innocence," if the witness was engaged in a business which jury believed the evidence. This was suffiwould be quite apt to familiarize him with cient under the rule announced by us in all the ordinary appearances of writings, State v. Rutledge, 37 Wash. 523, 79 Pac. and the addition of a letter, after a docu- 1123. ment had been finished, is so generally  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 See, also, Dubois v. Baker, 40 Barb. (N. Y.) not? A. Yes, sir. Q. You heard her testi556; Ballentine v. White, 77 Pa. 20; Eis- mony in the court below? A. Part of it; I field v. Dill, 71 Iowa, 442, 32 N. W. 420; Cox went to Portland when the case was going V. Dill, 85 Ind. 334; Moye v. Herndon, 30 on. Q. You heard her testify that this Miss. 110; Rogers v. Tyley, 144 Ill. 652, 32 note and mortgage was not drawn for the N. E. 393.
(interrupted) Mr. Zent: I In this state the precise questions seem ask that the prosecuting attorney be reprinot to have been decided; but we have held manded and that the jury be instructed to that an expert in handwriting may testify disregard what the attorney has said. The
stricken out, and the Jury instructed not to swear as to either, whether it was $250 or consider it as a part of the evidence in the $2,250. Q. You got no impression as to the case."
amount of the mortgage from the examinaThis is assigned as improper conduct on tion you made? Mr. Smith: I object. He the part of the prosecuting attorney, and said he could not testify positively; it would reversal is asked because thereof. But we be a mere guess. (Objection sustained.)" think there was nothing here on which to The refusal of the trial judge to permit an predicate reversible error. The cross-exam- answer to the last question is assigned as ination was proper enough down to the last error. But the ruling was proper. From question, and counsel's objection to that was the answers to the preceding questions it is promptly sustained, and the jury told not to plain that any answer the witness could consider it as part of the evidence in the have made to this would have thrown no case. It is to be presumed that the jurors, light upon the question at issue. as sensible and intelligent men, obeyed the (11) A number of errors are assigned on instruction of the court and disregarded the the instructions given by the court and the insinuation the question contained, rather refusal to give certain others requested by than that they drew any unwarranted in the defendant. These it would be unprofitferences therefrom. The cases cited by able to notice in detail. As a whole the incounsel in support of this claim of error, structions fully and fairly state the law of namely, Baldwin v. Grand Trunk Ry. Co., 61 the case to the jury, and cover all that is N. H. 596, 15 Atl. 411, Bullard v. Boston & material in the requested instructions subM. R. R., 64 N. H. 27, 5 Atl. 838, 10 Am. St. mitted by the defendant. Rep. 367, and Turner v. Muskegon Machine Counsel, however, argue one exception to & Foundry Co., 97 Mich. 166, 56 N. W. 360, the instructions with much earnestness, and are cases where an abuse of the privilege of this we will briefly notice. The court in its cross-examination was carried to extreme charge first outlined to the jury the testimolengths; yet it seems to us that in each of ny alleged in the information to be false and them the court in finding grounds for rever-perjured and to have been given by the desal on the matter that is recited in the rec- fendant on the trial of the civil action be ord went to the verge of the rule.
tween Maude Aubian and himself, and then  In this same connection it is argued instructed them that all the testimony imthat the prosecutor's argument to the jury puted to the defendant was material to the at the close of the case was so intemperate inquiry the court was authorized and requiras to amount to misconduct; but we do not ed to make in deciding that case. Further find that the objection to the address, if any on it outlined the several essential facts the was made in the court below, was preserved jury must find in order to find the defendant in the record. No error can be founded on guilty; the sixth of these being that the juimproper argument of counsel to the jury ry must find that the defendant, in the trial where no motion is made to strike it, or the of the civil action, after being sworn, took court asked to instruct the jury to disregard the witness stand and gave the testimony It. State v. Regan, 8 Wash. 506, 36 Pac. imputed to him by the information, or gave 472; State v. Bailey, 31 Wash. 89, 71 Pac. "some substantial part of it.” And during 715; State v. Van Waters, 36 Wash. 358, 78 the remainder of the charge, in every place Pac. 897; State v. Wong Tung Hee, 41 where the court had occasion to refer to the Wash. 623, 84 Pac. 596; State v. Hawkins, testimony given by the defendant as set 27 Wash. 375, 67 Pač. 814; Taylor v. Modern forth in the information, it charged the juWoodmen of America, 42 Wash. 304, 84 Pac. ry to the effect that it was not necessary 867.
that they find that the defendant gave all  J. C. Robinson was called as a witness the testimony imputed to him by the inforfor the defense and was interrogated by the mation, but that it was sufficient if they defendant's counsel and made answers as found that he gave some substantial part of follows: "Q. I hand you plaintiff's Identi-the testimony so imputed to him. The defication I, known as the 'mortgage'. I will fendant excepted to so much of the charge ask you if you are the notary who signed as stated that it was sufficient if the jury that as a witness and acknowledged it? A. found that the defendant gave some substanYes, sir. Q. Did you notice that document tial part of the testimony imputed to him in at the time you signed it as a notary public? the information, but did not except to the A. I did to a certain extent; yes, sir. Q. sufficiency of the summary of the charge Are you able to state how much that mort-contained in the information made by the gage was written for at that time? A. No, court, nor to the charge that all of the testisir. Q. Do you know about how much it mony imputed to the defendant in the inforwas? A. I could not swear to it. Q. Did mation was material to the inquiry in the you make any examination of the mortgage civil action. at that time? A. I usually make a pretty  It is argued that the portion of the close scrutiny of every paper I sign. This charge excepted to is error because it does has been a good while ago. Q. What do you not point out what part of the testimony the say now as to whether that mortgage was court deemed substantial, but allowed the written for $250 or $2,250? A. I could not jury to find the defendant guilty if they