State v. Katon

Ftjlleutost, J. The appellant, Ifaton, was accused by the prosecuting attorney of Chehalis county of the crime of rape, committed on the person of one Ruby Shannon, a female child of the age of fourteen years. He pleaded not guilty to the charge, and on the issue thus raised a trial was had before a jury, which resulted in a verdict of guilty. From the judgment pronounced upon the verdict, he appeals. It is first contended that the evidence was insufficient to justify the verdict. This contention is not based on the claim that there was a want of evidence tending to show the guilt of the appellant, but the claim is that the prosecuting witness, on whose evidence the state was compelled to rely to maintain its case, was so far impeached by her own conduct and admissions, and by the testimony of other witnesses, that the court should hold as a matter of law that her evidence was insufficient to maintain a conviction. The witness, on her direct examination, testified to acts which unquestionably showed the appellant’s guilt, but on cross-examination she admitted that she had stated to certain persons named that the appellant had not had sexual intercourse with her and was not the father of her child, and that she had, only the day before, on the trial of another person for the same offense, sworn, in answer to questions put to her by the defense, that the appellant had never had sexual intercourse - with her, and was innocent of any offense toward her. The only explanation she gave of her conduct in this respect was that she had promised the appellant to shield him in case any accusation should be made against him. The direct evidence tending to support her was the testimony of two persons who saw her in company with the appellant on the evening preceding the night she says the appellant had intercourse with her. The indirect evidence was somewhat more to the point. This consisted of admissions made by the appellant’s witnesses and the appellant himself, and his unsuccessful attempt to prove that he was elsewhere at the time the prosecutrix testified he was with her. But, of [3] course, to the overt act there was no direct evidence on the part of the state save that of the prosecutrix herself. But, notwithstanding this fact, we do not think there is here any question of law for the court. While a conviction of the crime, of perjury disqualifies a person from testifying as a Avitness in the absence of a reversal or pardon, no other disqualification of this sort exists. State v. Pearson, 37 Wash. 405, 79 Pac. 985. Any person, despite his character or previous conduct, may be a witness, although his character or conduct may be shown to affect his credibility. The Avitness, therefore, being a lawful one, it is not the province of this court to Aveigh her testimony. The jury do that in the first instance, and the trial court afterwards when the evidence is challenged, but when both the jury and the trial court say that the evidence is sufficient the question is ordinarily concluded. An appellate court, Avhich admittedly deals with only questions of laAV, cannot weigh conflicting evidence without usurping its functions. The appellant called as a Avitness one Mrs. Cole. This person, the prosecutrix testified, accompanied the prosecutrix and the appellant to the lodging house where the crime charged against the appellant was committed. The witness denied the statement of the prosecutrix, and professed only a slight acquaintance with her. On cross-examination she was asked, and over the objection of the appellant was compelled to answer, whether or not she had Avritten a letter to the prosecutrix 'asking her to meet the Avitness and Eaton at the Aberdeen cemetery, and whether or not she had attempted to persuade the prosecutrix to leaA'e Aberdeen with her. The first question she ansAvered in the affirmative, and the second negatively. The ruling of the court is assigned as error on the authority of the case of State v. Belknap, 44 Wash. 605, 87 Pac. 934. But that case is not authority for the contention here made. The questions put to the witness in the case at bar Avere pertinent to the inquiry; they tended to shoAV the intimacy of the witness with the prosecutrix; that the [4] witness had sought to bring the prosecutrix and the appellant together; and tended in some degree to corroborate the prosecutrix’s evidence. In the case cited, the questions held objectionable were wholly foreign to any issue in the case, and tended only to the degradation of the witnesses, without in any way aiding the jury. But cross-examination, to be permissible, need not always bear directly on the question at issue. The witness may be examined on matters foreign to the issue when it reasonably tends to affect his or her credibility. For example in State v. Coella, 3 Wash. 99, 28 Pac. 28, it was held error to refuse to permit a woman witness to be asked whether she was not a prostitute. The question, what is and what is not an abuse of the privilege, admits of no general answer. Each case must largely depend upon the circumstances which surround it, relegating the question in a large measure to the discretion of the trial court, to be reviewed only for an abuse of that discretion. In this instance we have no hesitancy in saying the discretion was not abused. The cross-examination of witnesses Millete and Hollingsworth was also proper. The questions complained of tended to discredit their positive statement made while testifying in chief, and as such were admissible even under the most strict application of the rule contended for by the appellant. The part of the charge of the court complained of is not properly before us for review. The exception was a general exception to an entire paragraph containing several distinct propositions, each of which, with possibly one exception, was free from error. Such an exception we have repeatedly held, is insufficient to bring the objectionable portion of the charge into this court for review, since it does not call the attention of the trial court to the particular part of the charge that is deemed erroneous. Gallamore v. Olympia, 34 Wash. 379, 75 Pac. 978, and cases there cited. The judgment is affirmed. Hadley, C. J., Mount, and Cnow, JJ., concur.