1 Reported in 161 P.2d 205. The appellant, Robert Redwine, was found guilty by a jury of the crime of assault in the second degree and from the judgment entered has taken this appeal. The appellant asserts as ground of reversal, (1) that the evidence produced at the trial was not sufficient upon which a verdict of guilty could be based, (2) that the court erred in the admission of testimony, and (3) that the court permitted improper cross-examination of a witness.
The factual situation which the jury had the right to find existed from evidence submitted to it, is substantially as follows: *Page 469
Hawley Stevens, on the occasion in question, was sitting at the bar in a beer parlor. Appellant sat beside him and to his right and invited Stevens to have a drink of beer with him. Stevens refused and hurled some epithets at him. Appellant had a small open knife in his right hand and struck Stevens with it on his right arm just above the elbow, inflicting a substantial wound. Stevens struck appellant, which caused him to fall from the stool on which he was sitting. While appellant was lying on the floor, the knife was taken from his right hand and later delivered to an officer. Witnesses testified to various details relative to the assault.
After the verdict of guilty was returned, appellant filed a motion in arrest of judgment and an alternative motion for a new trial. The motions were denied.
The appellant offered no evidence in his own defense. He rested his case at the close of the respondent's case. He sought to show by cross-examination of the witnesses called by respondent that, when the injured party struck him, he raised his arm to ward off the blows, and if the complainant received the cut claimed, it occurred in this way. The jury declined to accept this version of the manner the complaining witness received his wound.
Appellant argued that the testimony of the witnesses was too vague and uncertain to justify a finding that he stabbed the complaining witness and that the physical facts contradicted such a claim.
[1] We have read and considered the testimony given at the trial and find that it contains all of the elements of the crime charged, and that it is of sufficient probative force, if believed by the jury, to support and justify the verdict. The weight to be given to the testimony of the various witnesses and the physical facts was for the jury to determine.
After the affray took place, Robert Farrell brought appellant into the custody of two police officers, and he was then taken to jail. One of the police officers, in response to a question, testified: *Page 470
"A. Well I and Mr. Boock was in the police wagon and Sonny Tripplett and Bob Farrell both, took Mr. Redwine down to the car and said he cut a man with a knife. Q. Was the defendant present when the statement was made? A. Yes. Q. He heard it? A. Yes. Q. Did he deny it? A. Not that I know of."
Appropriate objection and motion to strike were made. The court overruled the objection and denied the motion.
The admission of this testimony is assigned as error.
[2] The general rule is that, when a statement is made in the presence and hearing of an accused that is accusatory or incriminating in character, and such statement is not denied, contradicted, or objected to by him, both the statement and fact of his failure to deny, contradict, or object are admissible on a criminal trial as evidence of his acquiescence in its truth.State v. Baruth, 47 Wash. 283, 91 P. 977; State v. Goodwin,119 Wash. 135, 204 P. 769; State v. McKenzie, 184 Wash. 32,49 P.2d 1115; 20 Am. Jur. 483, Evidence, § 570; Annotations 80 A.L.R. 1235; 115 A.L.R. 1510.
If we went no further in our review of this case, we could properly hold that the testimony was admissible under the rule pronounced by the above authorities, but it is claimed by the appellant and denied by the respondent that the statement referred to was made when appellant was under arrest, and therefore the rule is not applicable.
The authorities are in conflict as to whether the foregoing rule is applicable if, at the time the statement is made, the accused was under arrest. The rule in this state is set forth inState v. MacKenzie, 184 Wash. 32, 49 P.2d 1115, as follows:
"The rule that the mere arrest is sufficient to render inadmissible the fact of the accused's failure to deny accusatory statements made in his presence and hearing is supported by the weight of authority and certainly by the better reasoning."
The reasons given why the rule should not apply when the accused is under arrest is that silence at such a time is most conducive to his welfare whether he be guilty or *Page 471 innocent; that he is not then under any duty to speak, nor is there any natural impulse to speak; that he has a right to remain silent, and that he should not, while under arrest, be in a position where he should be told that if he said anything it would be used against him and if he did not say anything that likewise would be used against him.
[3] There is very grave doubt whether the appellant was under arrest at the time the statement was made, but we have decided to assume that he was under arrest and review the case from that standpoint. Upon the assumption we have made, the testimony was not admissible; however, it does not follow that the judgment should be reversed. The question arises whether the error was prejudicial. There is a presumption that error of this kind is prejudicial, and in reviewing a case it becomes necessary for the appellate court to give full consideration to the record and make a determination whether the presumption has been overcome and that prejudice did not result.
[4] There was direct evidence that the complaining witness had received a severe cut in his right arm; that a knife had been used to do the cutting, and that the knife had been wielded by appellant. The appellant made no denial of these facts and produced no evidence in his own behalf. In cases of this kind, the test as to whether an error in the reception in evidence of a statement of the character before us is to be deemed prejudicial, is this: Unless we can say, after a careful perusal of the record, that had the statement been excluded the jury would probably not have rendered a different verdict, the admission of the evidence will be held to have been prejudicial. Applying this test to the undisputed testimony of the case, it seems very clear that the jury could not have been influenced by the statement made by the parties who brought appellant to the police officers.
[5] Appellant claims the court erred in permitting counsel for respondent to cross-examine one of the witnesses called by respondent. The witness was a nurse who cared for the complaining witness when he was brought to the hospital right after the affray. She testified on direct examination *Page 472 that she cleansed and dressed the wound in the right arm of the patient. On cross-examination by counsel for appellant, she stated no artery had been cut and that she was familiar with the blood system of the human body. It was the theory of the respondent that an artery had been cut, and its counsel was permitted, over the objection of appellant, to interrogate the witness as to her knowledge of the human blood system, the evident purpose being to affect the weight to be given to her testimony that an artery had not been cut. The examination was responsive to the cross-examination by counsel for appellant, and we find no error in this respect.
The judgment is affirmed.
STEINERT, ROBINSON, JEFFERS, and MALLERY, JJ., concur.