State v. Polan

LA PRADE, Justice

(dissenting).

I cannot agree with'the disposition made of this appeal. The defendant received a fair and impartial trial and the state should not be put to the expense of retrying the case. The majority áre of the opinion that had the defendant not. been cross-examined concerning the so-called common-law marriage that the jury might well have returned a different verdict. The only different verdict that I can envision is. that on retrial the defendant may well receive the death penalty.

When the defendant in a criminal case testifies in his own behalf his veracity and credibility may be tested by cross-examination as other witnesses are tested. 58 Am.Jur., Witnesses, Sec. 687.

The defendant testified that when he stuck his head into the car occupied by Irene Entsminger and the deceased the latter was making sexual advances toward his (Polan’s) wife. Defendant wanted the advantage of the unwritten law. He said that he jerked the deceased from the car because of these advances being made on his “wife”; that Weight struck him; that he (Polan) pulled out his gun; that deceased grabbed the gun and in the scuffle the gun was discharged. I think that it was legitimate to cross-examine defendant to learn when, where, and how she became his wife. Prior to going to Indiana he and Irene had lived together here in Phoenix as man and wife, admittedly without having been married, which circumstance was known to their most intimate friends, Mr. and Mrs. Bak, with whom they lived.

The county attorney asked defendant when he got married, to which question counsel objected on the ground that “It has no. relevancy to this case whatsoever”. The objection was overruled. . Defendant was then asked, “In what church?”, “Where?”. *263 There was an objection, no reason given, and no ruling by the court. Defendant then testified that it was a “common-law marriage”, “by mutual agreement”, with no license and no formal ceremony. After this cross-examination defendant’s own counsel had defendant explain in detail how he stopped the car in which they were riding, presumably by the roadside, and exchanged vows. To quote defendant:

“I says, ‘Irene, if you will take me as your husband’, I says, ‘Before God, I love you and I have you as my wife. Do you want it that way?’, and she says, ‘ Y es, I want it that way but there is only one thing we have to have’, she says, ‘Where is my ring ?’ ”

The cross-examination went to a very material point. Had the defendant gone to the rescue of his wife? I think that his marriage relationship was very material. If it was a legal common-law marriage, defendant explained its inception but offered no proof to establish that a common-law marriage was legal in Indiana. When he and Irene returned to Arizona they went to live with their friends, the Baks. Defendant testified that “they” told the Baks of their “marriage”; this Mrs. Bak denied. She testified that they lived at her home as man and wife but she learned that they were not married by overhearing a quarrel in which Irene was demanding that Polan marry her. ■ Mrs. Bak throughout her testimony referred to Irene as “Irene” or “Mrs. Entsminger”. At about ten p. m. of the evening preceding the murder Irene had called Mrs. Bak to come and get her and her clothes, saying that “Polan had given her the gate”.

Shortly after the murder and within a few minutes after defendant abandoned the deceased at 7th Avenue and Yavapai Street, the defendant and Irene were arrested at 20th Avenue and West Van Burén, driving defendant’s car. When accosted by police officers defendant denied knowing anything about a killing and this one in particular. At this time Irene identified herself to the officers as “Irene Entsminger”.

In my mind this cross-examination was legitimate and warranted. The defendant’s veracity and credibility were in issue. The jury by its verdict placed no credence in anything the defendant said.

Assuming that this cross-examination was erroneous, was it prejudicial?

The jury did not convict defendant because he had or had not lied about his claimed marriage. This feature of the case was completely overshadowed by the fact that the jury believed that the defendant, on learning that Irene was with a man, became enraged and told Mrs. Bak, “I will kill the son-of-a-bitch that is with her”. After this statement he returned to his motel and secured his gun and, while flashing the gun in the presence of his landlord, said, “I will get that son-of-a-bitch”. After getting the gun and within a few minutes defendant returned to the Bak residence where like statements were made. While he was wait *264 ing and parading up and down the street, Irene and the deceased drove up. This event occurred within thirty minutes after Irene had met Weight, a pickup stranger.

When Weight drove up defendant rushed across the street to the car and, according to Mrs. Bak whose narration is as follows:

“From where I was standing he just yanked him out. Then I heard Mr. Weight say to him, T am sorry, I didn’t know. I don’t want no trouble’, and then I heard a gun shot and saw the man stumble.”

All the state’s evidence, which was believed by the jury, shows a clear case of a wilful and deliberate murder. The jury believed the police officers and disbelieved everything the defendant said, including his recitation of the facts of his claimed common-law marriage. This marriage story sank into insignificance in the face of all of defendant’s lying on the material facts of the killing and his disavowal of knowing anything about it when first arrested. I can’t conceive of the cross-examination being substantially prejudicial to this two-time loser whom the jury branded as a liar and a murderer.

Our constitution commands that no criminal case shall be reversed when upon the whole case it appears that substantial justice has been done. Const. Art. 6, Sec. 22.

The reversal of this conviction, in my judgment, constitutes a miscarriage of justice.