State v. Redwine

Millard, J.

(dissenting) — The statement, the accuracy of which I challenge, in the majority opinion that there is grave doubt whether appellant was under arrest at the time that Robert Farrell stated, “he [appellant] cut a man with a knife,” can not be sustained by the blending and mingling of statements of fact, inferences, and conclusions. It is to quibble to even intimate that “there is grave doubt whether the appellant,” who was charged -with a felony, was under arrest at the time the statement of which appellant complains was made.

The record is clear that Chappell, a policeman, Boock, another policeman, were with one Triplett sitting in front of the police station, which is one-half block from the scene of the alleged assault made by appellant upon the prosecuting witness, at the time Farrell made the statement “he cut a man with a knife.” The two policemen arrived at the station with the police wagon almost contemporaneous in point of time with the arrival of Farrell with appellant at that point. Farrell took appellant to the police station, at which point the police wagon then was, and Chappell accepted custody of the prisoner, whom he placed within the jail. At the same time, Chappell testified, that the statement was made, he “put him. [appellant] under arrest of

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course.” Chappell did not, nor did Farrell, witness the fight between appellant and the prosecuting witness.

Farrell testified that he did not know what appellant did because he was not present at the time appellant is alleged to have cut the prosecuting witness. That appellant was under arrest at the time Farrell made the statement concerning appellant to the policeman, is established beyond peradventure of a doubt by the evidence. (See pages 4 to 6, 7, 9,12,13, 26, 44, 45, 46, 47, 49, 52, and 53 of the statement of facts.)

I reiterate for emphasis: Robert Farrell, who did not witness the altercation and knew nothing about the assault except what was related to him by others, arrested, as he had a right to do, appellant, whom he conducted a distance of one-half block from the scene of the crime and surrendered him to the policemen. One of those policemen was permitted to testify that Farrell, who knew nothing except what he had heard at third or fourth hand, when he delivered the prisoner at the station stated “he cut a man with a knife.”

If, as was held in

Sullivan v. Seattle Electric Co.,

51 Wash. 71 , 97 Pac. 1109 , 130 Am. St. 1082, the exclamations of a person are not admissible in evidence unless such exclamations relate to matters of fact to which such person might properly testify if called as a witness, surely the rule should be no less strict when the life or liberty of a citizen is at stake.

The rule announced in

State v. McKenzie,

184 Wash. 32 , 49 P. (2d) 1115 , that mere arrest is sufficient to render inadmissible the fact of the failure of the accused to deny accusatory statements made in his presence and hearing, was breached in the trial of appellant in the case at bar.

It is not a sound rule that where a definite statement of a matter of fact is made in the presence or hearing of a party, so that he understands it, in regard to facts affecting him or his rights, that the failure of such party to reply to the statement is admissible in evidence as tending to show that he concedes the facts stated are true. In

Beck v. Dye,

200 Wash. 1 , 92 P. (2d) 1113 , 127 A. L. R. 1022, we

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held that, to bring the testimony within the

res gestae

rule, it must appear that the declaration or statement was made by one who either participated in the transaction or witnessed the act or facts concerning which the declaration or statement was made.

A man, about whom a statement is made in his presence implicating him in a crime, should not be held on his failure to deny the statement to acquiesce in the truth of such statement. He has a constitutional right to remain silent. Our constitution, Art. I, § 9, clothes an accused with the right of silence, and, as stated in

Towery v. State,

13 Okla. Crim. 216 , 163 Pac. 331 , L. R. A. 1917D, 491, it would be absurd where the constitution clothes the accused with the right of silence to say in one breath he has the right of silence, and in the next to hold that he may be forced to testify against himself by the very act of exercising that right. The correct rule is that, where a party charged with the commission of a crime is under arrest, and a third party in his presence makes a statement to the officers which tends to connect the accused with the commission of the crime, and the accused remains silent, such statement, and the fact that the accused remained silent, are not admissible in evidence against him.

Under state constitution, Art. I, § 9, the testimony as to the statement made by Farrell was inadmissible. If it is error to admit such evidence, it should be conclusively presumed that that evidence is prejudicial. One jurist observes that he refuses to get “worked up” over the constitutional rights of persons convicted. In other words, constitutional safeguards mean nothing if you are convicted, that jurist conclusively presuming that the defendant had a fair trial and was guilty because of the verdict.

One does not invoke safeguards until they are needed. If in time of need — not necessary at any other time — one may not be afforded the protection of the constitution, I cannot conceive of any purpose of writing such provisions into our constitution. A man is entitled to a fair trial, which means a legal trial. This presupposes that incompetent evidence will not be admitted. One could as validly

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be tried, over his protest, without a jury or with less than the legally required number of qualified jurors, as he could be fairly tried by the admission of evidence which the constitution declares is inadmissible.

No matter how guilty we may believe a defendant to be, no matter how guilty he may be, he is entitled to a fair trial and should not be denied any right guaranteed to him by the constitution. Courts are prone to deprive the accused of constitutional safeguards in the desire to administer criminal justice. By the deprivation of an accused of constitutional safeguards, the accused is denied a fair trial, and the verdict of the jury and the judgment of the court entered thereon are as invalid as if the accused had been tried by a mob. The only excuse that may be offered by the court is the same as that advanced by the mob — the accused, we are convinced, was guilty.

Clearly, it was error to admit in evidence, in violation of the constitutional right of the accused, the statement made by Farrell. To hold that such error is not prejudicial, is to claim clairvoyant powers and is to arrogate to ourselves the attribute of omniscience, a quality inherent only in Deity.

Lord Chief Justice Scroggs, who died in 1683 at the age of sixty years, attained his high position by his contempt for the rights of the accused, his refusal to get “worked up” over the rights of the accused. That vile chief justice, politician that he was, when he found the executive had changed its mind in the Rye House Plot prosecutions, with slavish subservience like those who today cater to pressure groups, changed his mind.

When one statesman said that he would rather be right than be president, he met the flippant retort that he would be neither. Today there are men in public life who prefer to be elected and re-elected rather than be right. Too many of that group have their desire.

Scroggs’ alter ego was George Jeffreys, who succeeded Scroggs as Lord Chief Justice of England. He, too, was guilty of the offense of endeavoring to convict by boldly attempting to pervert the rules of evidence. The life of

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each of those two justices, in whom appeared in full perfection the most brutal qualities, should' be studied, as such study might aid in the prevention of the growth of callous and inhuman feelings in courts.

Liberty is impossible unless we possess certain rights of personal security and immunity of which the state cannot deprive us. These must be preserved at all costs.

Doubtless, Samuel Untermyer had this in mind when he delivered an address in Philadelphia, Pennsylvania, April 9,1910. His very pertinent observations respecting the duty of prosecuting attorneys I quote as follows:

“It is with sincere regret and reluctance that I assert that save in rare instances the modern Prosecutor does not stand between the People and the accused. He and his assistants too often measure the success of their labors by the number of convictions they have secured. It is a false and brutal conception of duty that is responsible for grave injustice, but it is none the less true that it exists.”

In emphasizing the fact that what was said during the course of a trial was indelibly impressed upon the minds of those who heard the statements, an eminent jurist of this state observed, “One cannot unring a bell.” I marvel at the audacity of appellate courts which declare their ability to unscramble the admissible and inadmissible evidence and say that the inadmissible evidence did not influence the jury.

The rule applied in the case at bar is inconsistent with the rule that, where an accused refuses to take the stand in his own behalf, the prosecuting attorney may not comment upon the failure of the accused to testify. In such case, as in the case at bar, the rule is bottomed upon the constitutional guaranty that an accused has the right of silence.

Pontius Pilate interpreted, no doubt, his heeding the clamor of the then seeming majority a proper exception to the Roman doctrine of trial of the accused in a Roman tribunal and a finding therein of guilt prior to infliction of penalty exacted for commission of crime. Perhaps he. was anticipating the rule that centuries later exceptions to such

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guaranty of protection of an accused were not static, but might be enlarged from time to time if thereby conviction of the accused could be effected — those future cases when, where the interest of criminal justice collided with statutory and rooted common-law and constitutional safeguards, the rights and privileges of an accused were contravened. So perverting the rules, Pilate endeavored to “wash his hands” of the blood of the victim he cravenly surrendered to the mob.

The argument, so glib as to smack of plagiarism, of one of our jurists is that

in this day and age

we should eschew legalism and be

realistic.

Legalism is the doctrine of strict conformity to law. I suppose the jurist to whom I refer would ask for the same laxity in the matter of the Ten Commandments. His argument is aptly answered in the following language from page 308, “The Soul of the Law,” by William F. Clarke, where the author was writing on the subject of the constitutionality of the acts of some of the presidents of the United States:

“We are concerned with a willingness to scorn logic and law in favor of expedience — or in favor of a few more votes. The justification, ‘face a situation realistically,’ is so glib that it is hardly more than an evasion. A country should not be run ‘realistically’; it should be run lawfully. Hitler runs Germany realistically, yet we call him a tyrant.”

There may be little support for the view that judicial lynching is as reprehensible as lynching by the mob. In this era there is less reverence for the constitution than formerly. It seems as if today more are ready for applause and political preferment than there are for sacrifice or martyrdom. New are ready to sacrifice office or pay a very small price for preservation of rights guaranteed by the constitution.

The judgment should be reversed with direction to the trial court to grant a new trial to appellant.