It seems to me clear that prejudicial error was committed by the superior court in the course of the cross-examination of the appellant Aaron Johnson, and on other occasions.
The majority opinion refers to the Rigas expedition and appellant Aaron Johnson's connection therewith, and states that "Evidence of the Rigas robbery was introduced by the state to show plan, intent, and design."
Assuming that evidence concerning the assault upon and robbery of Rigas, under different circumstances, might have been admissible, I am convinced that error was committed by the trial court in connection with that phase of the case at bar.
It appears that, after the jury had been impaneled and sworn, counsel for the state suggested that certain questions of law, which would probably arise, might well be discussed in the absence of the jury, whereupon the jury, pursuant to direction by the court, retired.
The prosecution then, at the court's suggestion, made a statement concerning certain evidence which the state desired to offer, whereupon the court directed the witnesses present to retire from the courtroom.
Counsel for the prosecution then stated that evidence would be offered to the effect that the appellants in this action, and defendant Willie Smith, on occasions other than *Page 496 the robbery and murder of Williams, participated in crimes, in connection with which they had taken men in appellant Johnson's car for the purpose of robbing them. This statement is pertinent here only to the beating and robbing of Rigas, which occurred within two or three hours after the murder of Williams. In the case at bar, such evidence might be admissible only as tending to show a plan or scheme entered into and carried out by the appellants for the commission of crimes by way of robberies and incidental assaults.
Probably the majority of cases, in which it has been held that a plan or a scheme to commit crimes might be shown in the trial of a defendant for a particular crime, were cases in which the offense committed was forgery or some other fraudulent act. There are cases, however, in which it was held that such a plan could be shown in connection with crimes of violence.
After a lengthy statement by the prosecution, and argument by counsel, both for the state and for appellants (the arguments not being included in the statement of facts), the court delivered an oral opinion upon the questions presented by the prosecution, stating that the court was of the view that the evidence would not be admissible, although circumstances might arise during the trial which would result in a different conclusion.
During the statement by the prosecution, the court's attention was called to the fact that, soon after the murder of Williams, the appellants in the case at bar, together with defendant Smith and one Dorothy Day, had taken one Rigas, in Johnson's car, to a spot near that where Williams had been murdered, and that Rigas had been left there, after having been beaten and robbed.
The prosecution also referred to the fact that appellants here, and defendant Smith and Dorothy Day, had been tried, the week before the case at bar was called, for the offenses committed upon Rigas, and that the trial court had "dismissed the case against Aaron Johnson, stating we failed to prove a conspiracy." *Page 497
The court, then, at this time was definitely advised that appellant Johnson had been tried for the Rigas assault and robbery and had been acquitted.
It may be noted here that the judge who presided at the trial of the case at bar did not preside at the trial based upon offenses against Rigas.
During the statement by the prosecution, counsel for the appellants in this action announced that they would object to the evidence to which the prosecution referred, when offered.
After stating its conclusion, as above set forth, the court recalled the jury, and the trial proceeded. Following the opening statement by the prosecution, appellants' respective counsel stated that they would reserve their statements. At the close of the state's case, counsel for appellant Brown made no opening statement, and counsel for appellant Johnson made a short statement in behalf of his client.
Dorothy Day was called as a witness by the prosecution, and, after some preliminary questions, testified that, at a time soon after the Williams murder, she, with appellants Brown and Johnson, defendant Willie Smith, and Rigas, entered Johnson's car and proceeded to a place which, other evidence indicated, was near the site of the Williams murder. Counsel for the prosecution then said that, in his opinion, the next question which he proposed to ask the witness should be stated in the absence of the jury, so that the court might rule thereon.
The court instructed the jury to retire, and, after some discussion, counsel for the prosecution stated that the question he proposed to ask was: "`Tell what happened after you stopped the car. The car was stopped at this scene you pointed to?'"
Counsel for the state and for appellants then presented their arguments upon the propriety of the question, counsel for appellants contending that the question was objectionable.
The court then addressed the witness, saying: "If you are asked that question, what will your answer be," to which the witness replied: *Page 498
"When the car was stopped, Archie Brown got out of the car and pulled Rigas out, and Willie Smith got out and they started beating him, and he asked them not to beat him, and I got out and tried to stop them and one of them pushed me."
Dorothy Day next stated that the group returned to town "and left Rigas out there."
Counsel for appellant Johnson then made the following objection:
"It is objected to on the part of the defendant Johnson for the reason it proves the commission of another crime separate and apart and independent of the crime charged in the Information, and for the same reasons as stated in my objections and argument at the time counsel presented the matter as to his opening statement at the very beginning of the trial,"
to which counsel for the prosecution answered:
"If your Honor please, if counsel for Aaron Johnson considers that a crime, that was not the case in the former trial when counsel urged that was not proof of a crime and the result of that was a dismissal."
Counsel for appellant Johnson was evidently referring to the arguments which he had presented at the beginning of the trial, in the absence of the jury, which arguments are not included in the statement of facts.
It should also be noted that, at this point, counsel for the prosecution again stated to the court that, in the trial of appellants and others for offenses against Rigas, that case, as against appellant Johnson, had been dismissed, resulting in his acquittal.
Counsel for appellant Brown then said:
"On behalf of the defendant Archie Brown, I would like to object to the answer for the reason it would prove the commission of another crime on his part, the crime of assault, and therefore, not admissible."
After further discussion, the court stated that the witness would be allowed to answer the question, and, when the jury returned, the court directed the reporter to read the question to the witness, and instructed the witness to answer the question, which she did as follows: *Page 499
"When the car stopped Archie Brown got out of the back and pulled Rigas out the front, and Willie Smith got out and helped and they started beating him, and I got out and tried to stop them from beating him, and they shoved me, and they all got back in the car and went back to the Apex Tavern."
Counsel for the respective appellants presented their objections, which were overruled.
When the state rested its case, counsel for appellant Johnson made a brief statement concerning the robbery and murder of Williams, and conversations between Brown and Smith, on the one hand, and Johnson, on the other, while the parties were at the scene of the Williams robbery. Appellant Johnson was then called as a witness on his own behalf and was interrogated by his counsel as to his previous life history and certain preliminaries in connection with the taking of Williams in Johnson's car, followed by an account of the robbery and attack upon Williams, and the return of the party, in the car, to town. Counsel for appellant Brown briefly cross-examined Johnson concerning the Williams robbery, and counsel for the prosecution then cross-examined him at considerable length.
Up to this point, Johnson had been asked no question whatever concerning the Rigas robbery, nor had that event been referred to in any way. The first mention of Rigas, in Johnson's cross-examination, occurred as follows: Counsel for the prosecution had been propounding questions to the witness concerning other white men who had ridden with the witness in his car, and then asked:
"Q. How did it come about that they rode in your car and you didn't know their names? A. That has already been explained. Q. Not to me. I want you to explain it. A. I just got through explaining to you how he comes by, leading this other fellow, Rigas — Williams, I mean. Q. Which one? A. Williams."
The foregoing inadvertent mention of Rigas by the witness, followed by his immediate correction, affords no lawful basis for what occurred thereafter. The prosecution immediately asked: "What about Rigas? I thought you said *Page 500 you didn't know him." This question was unwarranted, as the name Rigas had not been previously mentioned, save as above set forth. The witness answered: "I said I didn't know his name personally, didn't know the man personally." The witness continued to answer questions concerning Williams, when the following occurred:
"Q. Where were you when you met Rigas? A. Where were I when I met who? Q. Rigas. A. When I met Williams, I had walked in the Tavern, that is when I met Williams; and Rigas, when I met him, he was with Dorothy Day. He and Dorothy Day came up to my car. You already heard your own witness testify to that."
Further questions were propounded concerning Williams, and then the prosecution again asked the witness concerning Rigas, the witness answering that Dorothy Day had introduced Rigas to him. To the question, "What became of Rigas," counsel for appellant Johnson objected as being immaterial, his objection having been overruled. Further objections were interposed to questions concerning the Rigas robbery, upon the ground that the questions were immaterial and improper cross-examination. On one occasion, the court overruled the objections, saying:
"It is overruled, because it is part of the testimony in chief and because of the story this witness gave on what happened about the locked gate, and all that. It is admissible, and the objection is overruled."
Later, counsel for appellant Johnson stated: "I think the Court understands that all this is objected to on our part," to which the court replied: "The record shows you have objected to all of it." The following then occurred:
Counsel for appellant Johnson: "I think counsel is persistently trying to bring this element into the case, contrary to the Court's ruling. THE COURT: The Court hasn't ruled contrary to the questions that the Prosecutor has asked, and the witness may answer."
Finally, the court stated: "In view of the testimony of the witness on direct examination about the Rigas matter, the witness will answer the question." *Page 501
In making this statement, the court was mistaken, as, on the direct examination of appellant Johnson, the name Rigas had never been mentioned, nor had reference been made to the robbery of Rigas. Thereafter, upon objection by counsel for Johnson, the court replied: "The Court has repeatedly overruled your objections," to which counsel preserved an exception.
After the lengthy cross-examination of appellant Johnson, no other witness for either appellant was called, and the prosecution recalled Dorothy Day, who again testified concerning the Rigas robbery. At the beginning of her direct examination, counsel for appellant Johnson stated:
"Objected to as improper rebuttal, having been covered by this witness's testimony in chief, and has not been denied by any testimony submitted by defendant Johnson,"
whereupon, counsel for the state said:
"If your Honor please, at the time we put in our case in chief, the Court ruled this matter could not be gone into, and it has been opened up by the defendant."
The court ruled: "In view of the testimony by Mr. Johnson, the Court will overrule the objection," to which counsel for appellant Johnson preserved an exception.
As stated above, the court was, on several occasions, informed that Johnson had been acquitted upon his trial for the Rigas robbery. It also appears from the record that Dorothy Day had been convicted upon that trial, upon her plea of guilty.
It does not appear that the jury was ever advised that that trial had resulted in the acquittal of appellant Johnson. The jury was not instructed that he had been acquitted upon his trial for that offense and that, consequently, they should not consider any evidence which was introduced concerning that trial as indicating that Johnson had been guilty of any crime in connection therewith. It is true that it does not appear that counsel for appellant Johnson requested any such instruction, but, nevertheless, it was the duty of the court, upon the record as made, to give the jury an appropriate instruction to that effect. *Page 502
By Art. IV, § 16, of the constitution of Washington, it is made the duty of a trial judge, in instructing a jury, to "declare the law." The basic responsibility rests upon the court to instruct the jury as to the law, in so far as the jury's findings or verdict is controlled thereby. The court must adequately and properly instruct the jury concerning the law which they must follow, regardless of whether or not counsel for the respective parties to the action submit proposed instructions for the court's consideration.
In the case at bar, the fact that appellant Johnson had been acquitted on the trial for assault upon and robbery of Rigas had been repeatedly called to the attention of the trial court, and the jury should have been advised as to the effect of that acquittal by an appropriate instruction.
Assuming, for the purposes of argument, that the majority correctly holds that the Rigas robbery was so closely related to the Williams murder, in time and general plan, that evidence concerning the Rigas robbery might properly be introduced as showing a prearranged plan or scheme to commit a series of robberies, this reasoning cannot apply to appellant Johnson, who was acquitted upon that trial, also bearing always in mind that the Rigas robbery was subsequent to the robbery and murder of Williams.
The cross-examination of appellant Johnson was clearly improper, he having made, on his examination in chief, no reference whatever to the Rigas robbery.
While it is true that, on the trial of one charged with crime, if the defendant takes the stand in his own behalf, he is subject to cross-examination to the same extent as any other witness (State v. Brooks, 89 Wash. 427, 154 P. 795; State v.Thornburg, 161 Wash. 288, 296 P. 824), nevertheless, the cross-examination must bear upon and be related to the testimony of the witness on direct examination.
In the case of State v. Crowder, 119 Wash. 450, 205 P. 850, this court, after citing Art. I, § 9, of the constitution of Washington, and two sections of the code, said:
"As to the constitutional question, there is no doubt that, when the accused takes the witness stand in his own behalf and by his testimony in chief opens up a pertinent subject, *Page 503 he thereby submits himself to proper cross-examination on such subject, and may not prevent or defeat cross-examination thereon by claiming the protection of the constitutional provision. [Citing cases.]"
In the case cited, it appeared that the defendant, who had been charged with statutory rape, took the stand as a witness in his own behalf and, on cross-examination, was compelled to testify "that he did have intercourse with the prosecuting witness on three or four occasions, one being the act upon which the state elected to rely."
The court, after citing several prior decisions, referred at length to the three well-defined rules governing the cross-examination of an accused:
". . . first, the English or orthodox rule, to the effect that the taking of the witness stand is a complete waiver as to all facts, including those which merely affect credibility; second, that the waiver extends only to matters relative to the issue, and does not permit cross-examination on collateral matters such as merely affect credibility; and third, the rule, usually founded on a statute, which subjects the accused to such cross-examination as may be given to other witnesses, or (leaving out the question of impeachment, not material here) permits of cross-examination based only upon subjects opened up by his examination in chief. This is generally referred to as the `American rule,' and is thus defined in 28 R.C.L. § 194, p. 604: [Quotation from text cited.]"
The court continued, referring to the American rule:
"This rule has been so largely adopted and followed in this country that it seems unnecessary to cite further authorities, though it must be admitted that there are some seeming inconsistencies in its application. While this court has never passed squarely upon this question in a criminal case, yet in civil cases there remains no doubt, and from the language of the statutes quoted and the expressions contained in our cases hereinbefore cited, it cannot be doubted that we are bound to the doctrine of the modern, or American rule, and it only remains to apply it to the facts in this case."
The court held that the trial court had erred in permitting the cross-examination of the defendant, of which he complained, *Page 504 and reversed the judgment of conviction, remanding the case for a new trial.
The following texts are pertinent to this inquiry:
20 Am. Jur. 299, Evidence, § 318: "Where the facts of the case bring it within one of the exceptions to the general rule that evidence of an independent crime is not admissible, the courts generally require that evidence of the accused's guilt of another crime shall not be admitted unless the proof of the other crime is clear and sufficient to authorize a finding of the defendant's guilt of such other crime; in other words, its commission must be shown beyond a reasonable doubt. In other cases it is said that there must be substantial evidence that the accused committed such other crimes. Other courts, however, deny that in order to render the testimony admissible such prior facts must be established by weight of evidence which will amount to demonstration and shut out all doubt or question of its existence."
4 Nichols Applied Evidence 3428, §§ 11, 12: "Where it is competent for the prosecution to prove other crimes similar to the one charged, the evidence as to the other similar crimes must at least make out a prima facie case that such other crimes were committed by defendant.
"When evidence of other crimes is admitted it should be carefully guarded by instructions so that its operation may be confined to the legitimate purposes for which it is competent."
1 Wharton's Criminal Evidence (11th ed.) 567, § 360: "Certain conditions must always exist as a predicate to the admission of evidence of other crimes. Such evidence, being a departure from the general rule of exclusion, is only admitted to render more certain the ascertainment of the exact truth as to the charge under trial. In any loose relaxation of the rule, the danger to the accused is that evidence may be adduced of offenses that he has not yet been called upon to defend, of which, if fairly tried, he might be able to acquit himself."
In the case at bar, the trial court erred in permitting the cross-examination of appellant Johnson in connection with the Rigas matter. While, in ruling upon this question, the trial court was evidently under a misapprehension concerning prior testimony, the effect upon appellant Johnson was, of course, the same. The last portions of the quotations from Nichols and Wharton, supra, are particularly pertinent here. *Page 505
The trial court also erred in permitting portions of the rebuttal testimony of the state's witness, Dorothy Day, which was not rebuttal to any of Johnson's testimony upon his examination in chief, but merely referred to portions of his cross-examination, which were improperly received in evidence.
The jury was never advised that Johnson had been acquitted upon the trial of himself and others for the Rigas robbery, and, from the testimony introduced, the jury was, beyond question, strongly prejudiced against appellant Johnson because of the testimony concerning his participation in that affair.
In view of the errors above referred to, I am convinced that, in the case at bar, appellant Johnson did not have a fair trial.
I am also convinced that, because of the errors referred to above, appellant Brown was unduly prejudiced, and that the record discloses that he was denied the fair trial to which every person charged with crime is entitled.
The judgment appealed from should be reversed as to both appellants, and a new trial granted.
ROBINSON, J., concurs with BEALS, J.