State v. Bossio

I am unable to agree with the decision of the majority on errors four to eight.

The disclaimer by the deputy prosecuting attorney referred to in the prevailing opinion should not be held to be legal surprise. The facts as to that were that the deputy prosecuting attorney could not truthfully have otherwise stated than that he was not actually surprised, because of the fact that the witnesses had presented themselves to him once in the company of the attorney for appellants, and once without the attorney, and stated to him that they were unable to recall the facts of the case. When confronted with the evidence they had given on the former trial by the prosecuting attorney, they still declared that they were unable to recall the facts as to the case, or their evidence at the former trial. Although exonerating the attorney for appellants of any collusion with them, because of his ability and good repute, it can hardly be doubted that these witnesses were colluding with appellants, and were under the influence of one or both of them. The testimony as to which they were so exceedingly forgetful was very material to the prosecution. Their testimony as they gave it was harmful to the prosecution. For instance, McNeil testified that he had never bought any liquor from either of the appellants or in their place, and had never seen any bought or sold there. In the former trial he had testified positively that he accompanied Irwin to the place on a day stated, gave him money to buy liquor before they went, and Irwin bought a pint of moonshine whiskey which they took away with them and drank. He testified to other details and transactions in the place of business of appellants, which he was utterly unable to remember at the present trial. Irwin had practically the same lapse of memory as McNeil. The witnesses were certainly hostile witnesses, and the only point upon which the prevailing opinion excludes the examination of them as to their former inconsistent testimony is that the prosecution was not surprised.

The object of a trial is to elicit the truth. These witnesses certainly were not honest in their declarations that they could not remember the important facts and transactions in the case. The state should not be bound by such so-called surprise. Statev. Simmons, 52 Wash. 132, 100 P. 269; State v. Catsampas,62 Wash. 70, 112 P. 1116; Ferris v. Todd, 124 Wash. 643,215 P. 54, in no respect approach this case in the way of willfully contradictory and collusive testimony of the witnesses.

The reasoning of People v. Cotton, 250 Ill. 338,95 N.E. 283, applies to this case, where the court said:

"It is next contended that the judgment ought to be reversed on account of improper conduct by the state's attorney in the examination of A.J. Saunders, a witness called on behalf of the people. The state's attorney did nothing improper, and the real complaint is against the rulings of the court. The witness had testified touching the matter before and developed an unusual and remarkable forgetfulness and lapse of memory, and the court permitted the state's attorney to call the attention of the witness to his former testimony for the purpose of refreshing his recollection. If a witness gives testimony different from previous statements, so that his testimony is a matter of surprise to the party calling him, the party may refresh his memory by calling his attention to the former statement, either to refresh his memory, or awaken hisconscience." (Italics mine.)

See, also, State Bank of Washington v. Spokane-Columbia RiverR. Nav. Co., 53 Wash. 528, 102 P. 414; State v. Kellogg,91 Wash. 665, 158 P. 344; State v. Sills, 113 Wash. 497,194 P. 580; Hurley v. State, 4 L.R.A. 161; Selover v. Bryant, 21 L.R.A. 418, and the case notes to the last cited case.

The prosecutor had a right to believe that witnesses when under oath, would testify to the truth, and that the truth was as they had testified at the former trial, notwithstanding their subsequent recantation out of court, when not under oath. He had the right to question them as to their former contradictory statements, confronting them with their former sworn statements so as to give them full opportunity of explanation and exculpation if they desired, that the jury might determine which of their statements were true; and for the further purpose of setting the party right before the jury. National Syrup Co. v.Carlson, 42 Ill. App. 178; The Charles Morgan, 115 U.S. 69.