State v. Wolf , 40 Wash. 2d 648 ( 1952 )

Hamley, J.

Robert DeWayne Wolf here appeals his conviction of the crime of carnal knowledge of a seventeen-year-old girl.

On the evening of March 23, 1951, defendant and one or two other young men called for the prosecuting witness at her home in Renton Highlands, in King county. They then drove to Renton in defendant’s car. Here they met two more young men who had another car. The entire party then drove, in the two cars, to a cafe in Auburn, where they stopped for coffee. The party (with or without defendant as a member) then drove on in defendant’s car, the other automobile having become disabled. Considerable drinking was in progress. They parked at a secluded spot on Monster road, near Renton. Here all of the young men who were then in the car, except one who had become too intoxicated, had intercourse with the prosecuting witness.

Defendant does not deny that he was a member of the party up to the time they stopped at the cafe at Auburn. It is his contention, however, that while he was drinking coffee and dozing at the cafe for an hour or so, the others took his car without his permission and drove to the place where the crimes were committed. He testified that the others later returned to the cafe and he rejoined the party before they took the prosecuting witness back to her home. Two waitresses at the cafe testified in support of defendant’s alibi.

The prosecuting witness and the four other young men testified that, defendant was with the party during the entire evening, and was one of those who had intercourse with the prosecuting witness. Three of these other youths had been charged with the same crime. Two had pleaded guilty, and the case of the third had been transferred to the juvenile court. Three of these four men testified that defendant had later attempted to get them to protect defendant by giving a false account of the evening’s activities. Two members of the Renton police department testified that when they were investigating the case, defendant had told them that he had been at home all that evening.

The jury returned a verdict of guilty, and judgment and sentence were entered accordingly.

The first assignment of error relates to appellant’s offer to prove, by two witnesses, that the prosecuting witness’ reputation for morality in the neighborhood was bad. The trial court refused to admit the offered testimony.

It is conceded that neither the element of consent nor the prosecuting witness’ previous chaste character is an essential ingredient of the crime charged. The record also indicates that the state did not attempt to affirmatively establish the prosecuting witness’ previous chaste character. Appellant .offered this evidence for the sole purpose of affecting credibility.

Evidence relative to immoral conduct by a witness, when offered for the purpose of affecting credibility, falls into two classes: (1) cross-examination or independent evidence tending to show specific acts of misconduct; and (2) evidence tending to show general reputation for chastity.

Precedent for the admission in the courts of this state of evidence falling in either of these categories, whether considered as a matter of “right” or as a matter of judicial discretion, goes back to the early case of State v. Coella, 3 Wash. 99, 28 Pac. 28. This was a murder case in which it was held reversible error to exclude cross-examination as to whether a witness called by the state was a prostitute. The reasoning behind that decision was epitomized in this excerpt from that opinion:

“She could not have ruthlessly destroyed that quality upon which most other good qualities are dependent, and for which, above all others, a woman is reverenced and respected, and yet retain her credit for truthfulness unsmirched.” (p. 106)

Our immediate concern is with regard to the second of the two categories of evidence referred to above. It will therefore not be useful to recount in detail the development of the rule relative to the admissibility of evidence as to specific acts of misconduct. It may be noted, however, that the rule permitting the parties to introduce such evidence as a matter of right, as distinguished from judicial discretion, has been applied only in cases involving seduction (State v. Jones, 80 Wash. 588, 142 Pac. 35), statutory rape (State v. Godwin, 131 Wash. 591, 230 Pac. 831), and gambling (State v. Smith, 145 Wash. 250, 259 Pac. 711). The latter case was overruled, in effect, in State v. Gaffney, 151 Wash. 599, 276 Pac. 873, 65 A. L. R. 405, and the rule permitting such evidence as a matter of right was completely abandoned as to all types of cases in State v. Linton, 36 Wn. (2d) 67, 216 P. (2d) 761. In that decision, involving a charge of statutory rape, it was held that the admission of evidence as to specific acts of misconduct, to affect credibility, rested within the sound discretion of the trial court.

Disregarding expressions in the nature of dicta, the rule regarding the admissibility of evidence as to general reputation for chastity, for the purpose of affecting credibility, appears to have been first announced in State v. Workman, 66 Wash. 292, 119 Pac. 751. This was a prosecution for the crime of statutory rape. It was there held reversible error to exclude such evidence. State v. Coella was cited as authority for the decision. State v. Jackson, 83 Wash. 514, 145 Pac. 470, involving a prosecution for the crime of conspiring to obstruct justice, resulted in a similar decision, again based upon State v. Coella.

In several subsequent decisions, this court has approved the practice of receiving such evidence to affect credibility. State v. Wingard, 92 Wash. 219, 158 Pac. 725; State v. Elder, 130 Wash. 612, 228 Pac. 1016; State v. Gaffney, 151 Wash. 599, 276 Pac. 873; State v. Crockett, 161 Wash. 262, 296 Pac. 1041; State v. Thomas, 8 Wn. (2d) 573, 113 P. (2d) 73; and State v. Hoggatt, 38 Wn. (2d) 932, 234 P. (2d) 495. In the Elder and Hoggatt cases, it was indicated that the admission of such evidence lies within the sound discretion of the trial court. This is to be compared to the rule laid down in the Workman and Jackson cases, to the effect that a party is entitled to introduce such evidence as a matter of right.

In the instant case, it is not clear from the record whether the trial court’s rejection of the proffered testimony resulted from an exercise of discretion or represented a ruling that such evidence is wholly inadmissible. For the reasons indicated below, we believe that such evidence was wholly inadmissible and that the correct result was therefore reached, whichever reason may have motivated the trial court.

The admissibility of evidence as to general reputation for immorality, to affect credibility, whether as a matter of right or of judicial discretion, is predicated upon the philosophy of State v. Coella, supra. That philosophy was expressly'rejected in State v. Linton, supra. In doing so, this court referred to decisions from other jurisdictions which deal with evidence as to general reputation, as well as decisions dealing with évidence as to specific acts. We there characterized as “logically sound” a quoted portion of the opinion in People v. Gray, 251 Ill. 431, 96 N. E. 268, a part of which reads as follows:

“ Tf the reputation of the prosecuting witness for chastity were to be held admissible as going to her general credibility, then, logically, such testimony would be equally admissible as to the credibility of any female who might be called to give evidence in any case. The court properly excluded the evidence as to the reputation of the prosecuting witness for chastity.’ ” (p. 93)

State v. Linton left the door open to receive evidence as to specific acts of immoral conduct if the trial court, in its discretion, found it acceptable. Likewise, State v. Elder, supra, and State v. Hoggatt, supra, left the door open to receive evidence as to general reputation for chastity if the trial court, in its discretion, found it acceptable. However correct that ruling may be with respect to evidence as to specific acts of immoral conduct (a question which is not before us), we are now convinced that the trial court should no longer be considered as having discretion to receive evidence as to general reputation for chastity for the purpose of affecting the credibility of the witness.

If, as we in effect said in State v. Linton, the trait of chastity has no such definite correlation with that of veracity as to justify courts in using the former as a criterion of the latter, then it is difficult to see where there is any room for the exercise of judicial discretion. As long as such discretion is lodged with the trial courts, questions as to reputation for immoral conduct will be asked. It is the asking óf such questions in front of the jury which does the principal damage. Warren v. Hynes, 4 Wn. (2d) 128, 138, 102 P. (2d) 691. If the witness’ reputation for chastity is so bad that it has in some way affected his or her reputation for truth and veracity, then the direct question can be asked as to reputation for truth and veracity. If the witness’ reputation for chastity has not produced this result, then the jury should not be invited to make this deduction.

For the reasons stated, it is our conclusion that the evidence was properly excluded.

The only other assignment of error discussed in appellant’s brief relates to the admission, over his objection, of the testimony of a police officer that, on the day following the occasion in question, the prosecuting witness had identified appellant as one of the offenders. Appellant contends that the admission of this testimony violated the rule which excludes evidence of the details of the complaint, including the identity of the offender and the nature of the act, and admits only such evidence as will establish whether or not a complaint was timely made.

Respondent argues that the evidence was admissible under an exception to the above rule which permits the admission, on rebuttal, of prior consistent testimony for the purpose of re-establishing the witness’ credibility, where the opposing party has raised an inference of recent fabrication. Both parties rely upon State v. Murley, 35 Wn. (2d) 233, 212 P. (2d) 801.

The general rule is as stated by appellant. It has been announced and applied in many cases, including State v. Murley, supra, and in the recent case of State v. Goebel, ante p. 18, 240 P. (2d) 251.

The principles regarding the recent-fabrication exception to that rule, as summarized in State v. Murley, are as follows:

“A witness’ prior out-of-court statements consistent with his in-court testimony are admissible for- the sole purpose of re-establishing the witness’ credibility when: (1) his testimony has been assailed (2) under circumstances inferring recent fabrication of his testimony (3) when the prior out-of-court statements were made under circumstances minimizing the risk that the witness foresaw the legal consequences of his statements.” (p. 238)

The record reveals the following situation: On cross-examination, the prosecuting witness was asked whether she had always'maintained .that the crime occurred as she had told in court, and that appellant was involved in it. She answered in the affirmative, and was then asked whether she recalled making a statement to Mrs. Don Freeman, a nurse in the Renton hospital, immediately following the crime. The witness answered that she had made no statement to a nurse alone.

Appellant then called Mrs. Freeman as a witness. Her testimony on direct examination was to the effect that the prosecuting witness, immediately after the incident, had given an entirely different account as to how the crime was committed, and had omitted mentioning appellant’s name in identifying those who had committed the crime. On cross-examination, counsel for the state questioned whether Mrs. Freeman had actually heard the prosecuting witness identify the assailants. Mrs. Freeman then stated positively that the prosecuting witness had mentioned the names, but that appellant’s name was not among them.

The state then recalled a police officer, who gave the questioned testimony to the effect that, on the day following the crime, the prosecuting witness had identified appellant as one of her assailants.

The record, as summarized above, indicates that all elements of the recent-fabrication exception, as stated in State v. Murley, were here present. The testimony of the prosecuting witness was definitely assailed under circumstances inferring recent fabrication. The prior out-of-court statement identifying appellant (as distinguished from the bare complaint) was made under circumstances minimizing the risk that the witness foresaw the legal consequences of such statements. This is true because these statements were not volunteered in an attempt to create evidence against appellant, but were elicited by the police officer during a routine investigation of the crime.

The judgment is affirmed.

SCHWELLENBACH, C. J., HlLL, DONWORTH, WEAVER, and Olson, JJ., concur.