State v. Stevick

161 P.2d 181, 23 Wash. 2d 420, 1945 Wash. LEXIS 258

• Court: Washington Supreme Court
• Decided: August 2, 1945
• Docket: No. 29514.
• Status: Published

Opinions

Simpson, J.

The defendant was charged by information with the crime of negligent homicide, committed while driving an automobile on a Seattle street. A trial to a jury resulted in a verdict of guilty. A motion for a new trial was denied, and defendant was sentenced as provided by statute. Defendant has appealed from the judgment and sentence against her upon the verdict.

It is urged that the court erred in thé following particulars: (1) In permitting the prosecuting attorney, over the objection of defendant’s counsel, to inject incompetent and prejudicial matters into the case; (2) in instructing the jury that they could consider the flight of the defendant from the scene of the accident; and (3) in instructing the jury that proof of negligent driving alone was sufficient to convict the defendant of the crime charged.

The facts relative to the commission of the crime were these: The accident occurred on Airport way in the city of Seattle June 30, 1944. It was a clear dry day. An auto mobile driven by Virginia Marshall was proceeding south on Airport way. Riding in the car with her were Arthur Phillips and William Baxter Knight. Miss Marshall was driving at a speed of between six and ten miles per hour on her right side of the street. She saw a car, afterwards identified as the one driven by appellant, approach from the south at “a terrific rate of speed” on its left side of the-street. Appellant’s car ran into that occupied by Miss Marshall and her companions. The three occupants of Miss Marshall’s car were injured and taken to a hospital. Mr. Knight died as a result of his injuries.

Police officers examined the street at the scene of the accident and testified that skid marks indicated that the left tires of the car driven by appellant were well to the west of the center line of the pavement. Counsel for appellant, in their brief, admit that there was sufficient evidence to take the case to a jury.

In order to consider the claim of error on the part of the trial court in allowing the deputy prosecuting attorney to ask certain questions and make certain statements, we set out that portion of the statement of facts in which the questions and statements of the state’s attorney appear:

“Q. When you were in Vancouver, B. C., on June 25, 1924, were you not convicted there, charged with working in a house of prostitution and charged with vagrancy, and fined $25.00 or 30 days? Mr. Garvin: I object to that. A. No, not— The Court: Just a minute. Mr. Garvin: Not proper cross-examination, improper as to form. The Court: Overruled. She may answer. A. I was charged with being disorderly and fighting and having trouble with some officers up there, but that wasn’t prostitution. . . . Q. You were convicted there of assaulting a police officer. In July, 1924, you were again convicted of vagrancy, weren’t you, or accused of working in a house of prostitution and fined $25.00? A. In Vancouver? Q. In Vancouver, B. C. A. I never worked in a house of prostitution up there. I was never convicted of that. The Court. The question is, were you convicted. You can either say yes or no. Mr. Garvin: The question is further than that, if your Honor please. Mr. Kirby: She can answer yes or no. The Witness: Not of anything like that. . . . Q. A1Í right, the first time there was June 25, 1924, you were convicted of vagrancy and fined $25.00 or 30 days; is that right? A. It says so. Q. All right, and July 25, 1924, you were again convicted of vagrancy and fined $25.00; is that right? A. I probably was. I got drunk up there a lot of times and got pinched. Q. But you were not in any house of prostitution during that time? A. No, I was not. Q. On September 24, 1924, you were convicted,of keeping a' disorderly house; isn’t that right; and fined $50.00? A. That’s when I had the trouble with the officer. Q. But were you or weren’t you convicted of running a disorderly house? A. Those two are the same date. Q. All right, but you were convicted of both at the same date? A. No, I was not. When I was convicted up there, the way I remember that, was because — was the worst fight I ever had. . . . Q. By any chance, would this be a fact, Mrs. Stevick, that prior to the time of this accident you and Mrs. Baytec had picked these colored soldiers up down near their barracks, starting down toward your rooming house, and had come up Spokane Street, cut the corner here, going on down to your rooming house with the colored soldiers?” (Italics ours.)

Violet M. Baytec was called and testified on behalf of appellant. During her cross-examination, the following occurred:

; “Q. (by Mr. Kirby) On July 11, 1943, you were also convicted as a disorderly person? A. Disorderly conduct. Q. Accused of working in a house of ill fame? . . . Q. (by Mr. Kirby) Were you convicted of vagrancy? A. It wasn’t vagrancy. It was disorderly conduct. Q. It was disorderly conduct, but the charge was vagrancy, wasn’t it? A. No. . . . Q. (by Mr. Kirby) On July 11, 1943, in King County, in the City of Seattle, under the name of Violet M. Baytec, were you not convicted of disorderly conduct, and given a 30-day suspended sentence? A. That’s right, yes. Q. Upon these charges, Mr. Levinson, Mrs. Stevick’s attorney, represented you? Mr. Garvin: Just a moment. The Court: Sustained. Mr. Levinson: Counsel knows better. I think the jury should be instructed— The Court: Yes. Disregard that. Counsel has a right to represent a client. Mr. Kirby: If the Court please, that is not the question. The purpose is not to cast any aspersion oh counsel, but the purpose is to show the connection. The purpose of this question is perfectly legitimate, to show the friendship and relationship between her and Mrs. Stevick. The Court: The fact that they have the same counsel? No. Sustained. Mr. Kirby: Works in the same place; arrest comes from the same house; same counsel representing them. . . . ” (Italics ours.)

This court has on frequent occasions passed upon questions concerning the conduct of counsel in civil and criminal cases. In State v. Montgomery, 56 Wash. 443, 105 Pac. 1035, a conviction was reversed because of questions and statements asked by the prosecuting attorney.

In State v. Devlin, 145 Wash. 44, 258 Pac. 826, the prosecuting attorney put the fact before the jury that the defendant’s picture was in the “rogue’s gallery.” This court reversed the conviction of the defendant upon the ground that the evidence was of a prejudicial nature.

In State v. Carr, 160 Wash. 83, 294 Pac. 1016, this court held that it was reversible error for the prosecuting at-, torney to persistently disregard rules of court and attempt,' by improper questions, to bring before the jury incompetent and irrelevant matters.

In State v. Tweedy, 165 Wash. 281, 5 P. (2d) 335, a judgment of conviction was reversed because of the conduct of the prosecuting attorney in asking repeated questions concerning the whereabouts of a witness, after the trial court had ruled against the admission of the evidence.

• In State v. Sang, 184 Wash. 444, 51 P. (2d) 414, reversal was caused because of the statement of the deputy prosecuting attorney that the defendant had “a general reputation as a gambler.”

This court, in State v. Smith, 189 Wash. 422, 65 P. (2d) 1075, held as reversible error the action of the state’s attorney in attempting to show that the defendant had left the Marine Corps under circumstances detrimental to him,after the trial court had held the evidence inadmissible. ■ ■ '■

■' In Warren v. Hynes, 4 Wn. (2d) 128, 102 P. (2d) 691, the defendant was asked on cross-examination if he made his living by • stealing automobiles and. “holding up” people.. Judgment was reversed because of the conduct of counsel. in asking the question to which we have just referred. In passing, this court stated:

“Evidence of particular acts of misconduct which tends to disgrace a witness cannot be elicited from such witness on cross-examination for the purpose of impeaching him, any more than it can by the testimony of other witnesses.”

A study of the foregoing cases demonstrates that reference to specific acts of misconduct cannot be made to expose the witness to ridicule or to discredit him in the minds of the jury. The conduct upon which we have reversed judgments in the above cases was mild compared to the actions of the state’s attorney in this case. By repeated questions the deputy prosecuting attorney accused appellant of being a prostitute. Not only that, but he made the same accusation concerning one of appellant’s witnesses. The state (lid not attempt to prove former convictions indicated by the questions. In this day in which criminal records are quite complete and available to all prosecuting officials, there is no excuse for asking questions concerning former convictions at random.

A new trial must be granted to appellant.

Inasmuch as this case will probably be tried again, we deem it necessary to páss upon the other alleged errors of which appellant complains.

Counsel for appellant press upon us error of the trial court in giving an instruction relating to the flight of appellant. The basis of the claim of error is that there was no evidence to justify the giving of the instruction. The evidence shows that immediately after the accident appellant stated, as one witness put it, “Don’t leave me now. Don’t leave me now. I’m leaving.” Appellant then went towards some wood and coal yards located across the street east of the place of the accident. She crossed the yards and arrived at a point across the street from the Moon Mullins tavern, a distance of several hundred feet from where her car had stopped. Appellant then went to the room of a friend and asked him to “get” her husband. July 3, 1944, appellant was arrested at the police station when she called to inquire concerning the car, which had been impounded.

We’re satisfied that the evidence warranted the giving of the instruction. State v. Stentz, 33 Wash. 444, 74 Pac. 588; State v. Deatherage, 35 Wash. 326, 77 Pac. 504; State v. Ito, 129 Wash. 402, 225 Pac. 63.

The last assignment of error relates to the giving of instructions Nos. 4, 5, 6, and 7. We are unable to consider an objection to instruction No. 7 for the reason that no exception was made to it. The other instructions read as follows:

“No. 4. I instruct you that the laws of the State of Washington pertaining to the operation of motor vehicles, among other things, provide as follows: Rem. Rev. Stat., Section 6360-64. ‘(1) Every person operating or driving a vehicle of any character upon the public highways of this state shall operate the same in a careful and prudent manner and at a rate of speed no greater than is reasonable and proper under the conditions existing at the point of operation, taking into account the amount and character of the traffic, weight of vehicle, grade and width of. high-: way, condition of surface and freedom of obstruction to view ahead and consistent with any and all conditions existing at the point of operation so as not to unduly or unreasonably endanger the life, limb, property or other rights of any person entitled to the use of such public highways; ... .’

“No. 5. I instruct you that it is the duty of every opr erator of a motor vehicle to obey the laws of the state of Washington pertaining to the operation of motor vehicles'.

“No. 6. • The term ‘to operate in a reckless manner,’ when used in connection with the operation of a motor vehicle over and along the public highways of this state, is defined to mean the operation of a motor vehicle in a heedless, careless or rash manner or in a manner indifferent to consequences. It is a disregard for the safety of persons qr property.”

Appellant argues that the trial court did not require the state to prove its case to the full measure of the statutory definitions, but injected the doctrine of ordinary negligence, which had the effect of basing a conviction upon that negligence. It is contended that the definition contained in instruction No. 6 should have defined the phrase “operate a vehicle in a reckless manner” to be willful or wanton disregard for the safety of persons or property. The last contention is based upon the provision of Rem. Rev. Stat., Vol. 7A, § 6360-118 [P.P.C. §295-87], which defines the words “operate in a reckless manner” to be in such manner as to indicate either a willful or wanton disregard of the safety of persons or property.

This court has considered these questions in State v. Dickert, 194 Wash. 629, 79 P. (2d) 328, and State v. Hedges, 8 Wn. (2d) 652, 113 P. (2d) 530. In the latter case' this court considered the proposition as to whether a conviction could be had, or a death was caused, “by the failure of the accused to use ordinary caution in performance of a lawful act by lawful means and without unlawful intent.” After citing and commenting upon many decisions, it was decided:

“After careful consideration, we are convinced that the statute referred to does not require a finding by the jury that the accused was guilty of gross negligence, before a conviction may be had. Under this statute, a finding that an accused was guilty of ordinary negligence supports a conviction.”

In the Dickert case, we had for consideration Rem. Rev. Stat., Vol. 7A, § 6360-120, the same statute under which appellant was charged in this case and § 6360-118, referred to by appellant. After setting out Rem. Rev. Stat., Vol. 7A, § 6360-118, this court stated:

“It will be observed that, by this section, to operate a motor vehicle in a reckless manner means that the operation be in such a manner as to indicate ‘either a willful or wanton disregard’ for the safety of persons or property. The language ‘willful or wanton disregard’ does not appear in § 120, which defines, as stated, the crime of negligent homicide, the section upon which the charge in this , case was based.”

The cases to which we have just referred announce rules that apply to the charge, the evidence, and the instructions given by the trial court in the instant case.

Appellant makes' an argument that the court erred in not giving several proposed instructions. We cannot consider that contention for the reason that no error was assigned in appellant’s brief concerning the refusal of the court to give the instructions. However, we have read the instructions, given and proposed, and conclude that those given were proper and fully advised the jury concerning the law.

■The judgment will be reversed, with instructions to grant the appellant a new trial.

Beals, C. J., Blake, and Robinson, JJ., concur.