State v. Smith , 2 Wash. App. 769 ( 1970 )

Williams, J.

Appellant was charged, tried by jury, and convicted of second-degree murder.

On April 4, 1968, in a tavern in Seattle, the decedent and appellant quarreled. At the time he was shot by appellant, the decedent had his hands in his trouser pockets. There was disputed evidence as to which party was advancing and which retreating when appellant pointed a gun at decedent and fired three times in rapid succession. There was some evidence of an altercation between the decedent and appellant, but it appears that there was no violence prior to the shooting.

Appellant claimed self-defense. Homicide is excused if there is “reasonable ground to apprehend a design on the part of the person slain . . . to do some great personal injury to the slayer . . . and there is imminent danger of such design being accomplished; . . .” RCW 9.48.170. Appellant’s counsel offered to prove that the racial group to which the decedent belonged was • sufficiently violent to cause one who argued with any member of that race to have “reasonable ground to apprehend” imminent danger of receiving great personal injury from a knife, gun, bar stool, or anything else in reach. The objection of the state to such testimony was sustáined.

Appellant submitted no authorities or references in support of his contention, and we know of none. To the contrary, .the law is established that in considering a person’s conduct, membership in one race or another is immaterial. Atlanta Coca-Cola Bottling Co. v. Shipp, 170 Ga. 817, 154 S.E. 243, 71 A.L.R. 1295 (1930). In State v. Turpin, 158 Wash. 103, 290 P. 824 (1930), the same general type of defense was raised by the defendant who was charged with killing an oriental. He claimed he was afraid of Chinamen'. The Supreme Court rejected the defense by ignoring it.

Of course, a characteristic or trait of an individual assailant such as a disposition for turbulence or violence may be shown as one of the circumstances bearing-upon the justification for the defender’s actions in protecting himself. State v. Adamo, 120 Wash. 268, 207 P. 7 (1922); State v. Moore, 182 Wash. 111, 45 P.2d 605 (1935); 6 Am. Jur. 2d Assault and Battery, § 105. Self-defense is personal to the defender, who is concerned only with the person or persons then offering to do him great personal injury. The reputation of a particular group for lawlessness may be taken into account, if the purported assailant is a member of that group and this fact is known to the defender. These circumstances should be considered by the jury in deciding the issue of what the defender as “a reasonably prudent man similarly situated would have done. . . .” State v. Tribett, 74 Wash. 125, 132 P. 875 (1913). Appellant did not offer to prove that the deceased was a member of a group which he knew was violent, or turbulent, or predisposed to fight with certain weapons. His offer was to prove that the deceased was a member of a race. This is not relevant to a determination of the reasonableness of the appellant’s apprehension of danger just prior to his firing the weapon.

Appellant also contends there was error during his cross-examination as to previous convictions. He was asked and answered:

Q Have you ever been convicted of a crime, Mr. Smith? A A crime? What crime? Q Well, any kind? A Not that T know of any kind of a crime. I have had thirty days suspended. Q For what? Was that for a threat to kill? A Yes. Q When was this? A This past year. March. Q Ma^ch of this year? A March of ’68. Q This was unrelated to this case? A Yes, it was. Q Did that take place in the Rendevous Tavern? A Yes, it was. Q. Did you have a gun on your at that time?

Objection to the last question was sustained. Subsequently, both counsel discovered that-appellant’s'testimony as. to the prior conviction was in error. At the request of appellant and with consent of the state, the criminal complaint and transcript of the prior offense were entered in evidence. The complaint in Seattle Municipal Court charged that appellant “threatened to do bodily injury” and the transcript reflected that he was accused of “threats,” and required to serve 30 days, suspended. Since the jury was given the correct information as to the previous conviction, there was' no prejudice to the substantial rights of appellant. State v. Robbins, 37 Wn.2d 492, 224 P.2d 1076 (1950); State v. Overland, 68 Wash. 566, 123 P. 1011 (1912).

A further claim of error by appellant is that twice the prosecutor improperly got before the jury testimony that appellant had taken a pistol into another tavern on a separate occasion. The question of whether or not appellant carried a gun was initially raised by appellant during the direct examination of one of his witnesses. Also, in his own defense, appellant stated that he habitually kept his pistol in a bureau drawer at home. Appellant created the issue and may not complain of efforts by the state to rebut the evidence he introduced. State v. West, 70 Wn.2d 751, 424 P.2d 1014 (1967).

The judgment is affirmed.

Utter, J., concurs.