(dissenting) — This case involves a matter of a witness who changed his story long after trial. The witness in question was the complaining witness, the victim of an assault with a knife, but he was only one of several persons who was present at the assault and who testified at the trial. The only issue upon which he changed his story was whether he had an ashtray in his hand at the time he was assaulted.
There are several reasons why the post-conviction relief should be denied.
It has never been the law that a new trial, or post-conviction relief of any kind, need be granted in case a witness later changes his version of the events, or later says his testimony at the trial was not true. State v. Rhinehart, 70 Wn.2d 649, 424 P.2d 906 (1967); State v. Wynn, 178 Wash. 287, 34 P.2d 900 (1934).
In State v. Wynn, supra, it is said at page 289: “The untrustworthy character of recanting testimony is well known by those experienced in the trial of criminal cases.”
Sound policy considerations support the position taken in this dissent. If it were possible to have a conviction vacated any time a witness said his testimony at the trial was not correct, there would be no finality to judgments of conviction. Witnesses would be subjected to constant pressures. Persons with knowledge of the facts would be less willing to be witnesses if they knew they would be subjected to continuing harassment and urgings to deny the truth of testimony given in the trial.
The majority seek to distinguish State v. Wynn, supra, and State v. Rhinehart, supra, upon the basis that there is corroboration of the testimony of the recanting witness by independent evidence. I submit there is stronger reason to consider the change in the account by the complaining witness in either Wynn or in Rhinehart than in the instant. *840case. Both of those cases involved the type of crime which is commonly referred to as a “sex crime.” The common experience of mankind will confirm that such crimes are usually committed in private, and the conviction must rest primarily upon the testimony of the complaining witness. It is also common experience that such crimes are fraught with great hazard of false accusations because of the factors just mentioned, and because of such motives as protecting the truly guilty party, anger, jealousy, and revenge.
Contrary to those cases, in the case at bar the crime was committed in the presence of four witnesses.
It must be remembered we are here faced with a case in which there are several eyewitnesses. It was undisputed the assault occurred. The defense was affirmative, self-defense.
The jury had not only the benefit of the testimony of all of the witnesses, but also they saw both defendant and complaining witness, and could determine the size and physical abilities of each. The ashtray was presumably in evidence for the jury to see, but if not, it certainly would have been fully described to the jury. For the purposes of this proceeding, we do not have the benefit of the full record of the trial, but the Court of Appeals did have such a record on the direct appeal of the conviction. State v. Rolax, 7 Wn. App. 937, 503 P.2d 1093 (1972). Therein the court said at page 942:
There is no evidence which would justify the defendant in using the degree of force which he used, nor any evidence to support a finding that a reasonably cautious and prudent man would have used a weapon as did the defendant.
The affidavit of Marcus Eugene Hardison, the complaining witness who recanted, is vague, ambiguous, and weak. He says he testified he did not have a weapon and in the affidavit says he did have a weapon. The only weapon ever discussed was an ashtray. He also says he testified the brother of defendant held him at the time of the assault, and in the affidavit says, “This, too, is not entirely accu*841rate.” He says in the affidavit the brother was in the midst of the fight, but carefully refrains from saying he was not being held. The other item upon which he recants is that he had testified that after the stabbing he heard defendant threaten to “off” him, and in the affidavit says he heard nothing.
Defendant was accorded a trial which was found to be free from error when the conviction was affirmed on appeal. State v. Rolax, 7 Wn. App. 937, 503 P.2d 1093 (1972). He was given an opportunity in that appeal to present further argument, pro se, which he failed to do, although he was not inexperienced in matters of criminal law. State v. Rolax, 3 Wn. App. 653, 479 P.2d 158 (1970).
There is no justification for giving any further consideration to the claims of this defendant. I would deny the writ.
Hale, C.J., and Hunter and Brachtenbach, JJ., concur with Wright, J.