1 Reported in 167 P.2d 986. Defendant was charged by the prosecuting attorney of King county by information which contained two counts, one of rape and the other of assault in the second degree. Trial to a jury resulted in a verdict of not guilty of the crime of rape and guilty of the crime of assault in the second degree. Motion for new trial was presented *Page 911 but not passed upon by the trial court, except that he wrote on the bottom of an order to deny presented by the state, "refused by the Court."
The assignments relate to the refusal on the part of the trial court to strike the charge relating to second-degree assault; to permit cross-examination of certain witnesses called by the state; refusal to allow the introduction of evidence by appellant; refusal to grant a motion for mistrial; the admission of certain exhibits; and the allowance of cross-examination of witnesses called to testify as to appellant's reputation.
Appellant does not contend that the evidence was insufficient to support the verdict, hence it is not necessary to recount any of the facts other than those which relate to the questions raised by him.
[1] At the beginning of the trial, appellant moved to strike that portion of the information which charged second-degree assault. The motion was denied. The facts upon which appellant based his motion are these: About four weeks prior to the filing of the information in this case, appellant was charged with assault in the second degree in one of the justice courts in Seattle. Thereafter the charge was reduced to assault in the third degree and then dismissed upon the state's motion.
It is appellant's contention that, when the original charge was reduced to third-degree assault, the former charge became merged therein, and the dismissal thereof was a bar to further prosecution in the superior court. He cites State v. Durbin,32 Wash. 289, 73 P. 373, as authority for his contention. In that case, the court held that the voluntary dismissal of an information for assault and battery was a bar to a conviction of assault under a subsequent information. That holding, as pointed out in State v. Wilson, 130 Wash. 444, 227 P. 850, was based upon Bal. Code, § 6916, which read:
"An order for dismissal as provided in this chapter is a bar to another prosecution for the same offense if it be a misdemeanor; but is not a bar if the offense charged be a felony." *Page 912
And, as further pointed out in the case just cited, the present statute provides for a bar as to a misdemeanor where the former information charged the same misdemeanor. The court then said:
"Manifestly, the purpose of the present statute is to forbid the prosecution for the same misdemeanor charged in the first information; for illustration, the prosecuting attorney may not charge one with possession of intoxicating liquor, dismiss the charge and file another information for possession of the same liquor. This is the conclusion to which we came in State v.Wickstrom, 92 Wash. 503, 159 P. 753, where, speaking of the present statute, we said:
"`. . . it bars a prosecution when the second prosecution is for the same misdemeanor or gross misdemeanor with which a defendant had been previously charged and the action dismissed.'
"Speaking of the case of State v. Durbin, supra, we further said:
"`The statute upon which that case was based is general in its terms, while the present statute is specific and definite, and provides in express language when a dismissal will work a bar and when it will not. The difference in the language in the two statutes is such that the holding in that case would not now be controlling.'"
It is clearly apparent that the Durbin case is not in point and that the present statute, Rem. Rev. Stat., § 2315 [P.P.C. § 120-21] which was in effect at the time the Wilson case was decided, does not apply for the reason that the charge in the justice court could only be for a misdemeanor, while the charge in the superior court was for a felony. This holding is not contrary to our decision in State v. Voelker, 137 Wash. 156,242 P. 6, in which this court decided that the dismissal of the charge of a misdemeanor in the justice court was a bar to a prosecution of the same charge in the superior court.
[2] The next error of which appellant complains has to do with the refusal of the court to allow cross-examination of some of the witnesses called by the state. These witnesses were deputy sheriffs of King county who testified that they searched appellant's car and found therein several combs and earrings. Counsel for appellant on cross-examination *Page 913 then asked several questions relative to a search they had made of appellant's home. The court sustained the state's objection based upon the ground that the witnesses had not been interrogated as to a search of appellant's place of abode. The trial court was entirely correct in its holding. The state limited its questions to the search of appellant's automobile. Therefore, appellant was limited in his cross-examination to what occurred when the car was being searched.
[3] Appellant contends, however, that he had a right to cross-examine concerning other acts of the deputy sheriffs to show their bias and ill-feeling towards appellant. The scope and extent of cross-examination to show the bias or interest of a witness is largely within the discretion of the trial court, and its ruling will not be disturbed unless the discretion has been abused. State v. Temby, 172 Wash. 131, 19 P.2d 661; Moffittv. Goldcamp, 195 Wash. 75, 79 P.2d 695. We find that the court properly exercised its discretion relative to the cross-examination.
The next assignment of error concerns the direct examination of the deputy sheriffs by appellant's counsel when they were called as witnesses for the defense, and the admission in evidence of a gas gun, three liquor permit cards, and a railway switch key found by the officers in appellant's home. The evidence and the court's rulings are best shown by quoting from the statement of facts. Counsel examined deputy sheriff Anderson as follows:
"Q. The morning of the 21st of July, 1944, did you go to Mr. Robinson's cabin in your capacity as deputy sheriff? A. Right. Q. Who accompanied you? A. Walter Kerr. Q. Who is he? A. A deputy sheriff. Q. Did you search the cabin? A. We searched the cabin, yes. Q. This was the 21st of July, 1944? A. In the morning. Q. What did you take from the cabin? A. Well, we took several articles. Q. What were they? A. One was a gas gun, and a Southern — or, Northern Pacific switch key, and several liquor permits. Q. What else? A. Some envelopes in the box with the liquor permits. We took them along. Q. Did you have a search warrant? A. No sir." *Page 914
Cross-examination:
"Q. What was the object of you going out there to his car and cabin? A. Looking for evidence. Q. And you mentioned a gas gun when Mr. Schermer asked you. What kind of a gas gun was it? MR. SCHERMER: Objection, it is immaterial. THE COURT: He may answer. A. Well, it was a thirty-two calibre. Q. What does that shoot? .. . Q. What does this gas gun shoot? A. Well, it shoots the same size shells as a thirty-two revolver. Q. What would it shoot in the shell? A. Gas. Q. What kind of gas? MR. SCHERMER: Ask if he knows. Q. Do you know what kind of gas is shot — A. No, I don't. MR. SCHERMER: You understand my objection runs to all of this. Q. You don't know what kind of gas? I don't mean the technical term. Do you know the popular name? A. Tear gas. Q. And now, you mentioned a Northern Pacific switch key? MR. SCHERMER: Same objection. THE COURT: Same ruling. MR. SCHERMER: Exception. Q. What will these switch keys open? A. Railroad switches. Q. Anything else. A. Not that I know of. Q. You say you found some liquor cards there? A. Yes. Q. Whose liquor cards were they? A. Well — MR. SCHERMER: Same objection. MR. SHORETT: May I withdraw that? Did they have the defendant's name on them? A. One did. Q. How many did you find? A. Four. Q. How about the other three? MR. SCHERMER: Same objection. THE COURT: He may answer. A. There were three of them with women's names on them, made out to them. Q. What were the people's names? MR. SCHERMER: Women's names, he said. . . . Q. Will you step down here? Do you understand how this gun works? A. I don't, no. Q. Just sit back then. Handing you State's Exhibit No. 10, for identification, will you state what that is? A. That is a switch key. Q. Where did you find that? A. That was in a box on the kitchen table. Q. In whose house? A. In Mr. Robinson's house. Q. On this particular occasion when you went out there? A. Yes. MR. SHORETT: I offer State's exhibit No. 10. MR. SCHERMER: Same objection, — no relevancy. It is simply offered to prejudice the jury. THE COURT: State's Exhibit No. 10 may be admitted. Objection overruled."
The cross-examination of deputy sheriff Kerr was as follows:
"Q. Have you ever worked for a railroad company? A. Yes. Q. What company? A. The Northern Pacific *Page 915 and the Milwaukee. Q. Do you know what a railroad switch key is? A. Yes. Q. Do you know what a railroad switch key of the Northern Pacific unlocks? A. Many things. Q. Tell what they unlock. MR. SCHERMER: Object as being grossly prejudicial. It is speculative and has no possible probative bearing in this case and is introduced for the sole purpose of prejudicing the jury. THE COURT: I think you better refer to the Exhibit. The objection will be sustained unless he is shown the key. Q. Do you know what State's Exhibit No. 10 is? A. I do. Q. What is it? A. A Northern Pacific switch key. Q. And do you know what that key will unlock? A. Well, as I said before, it will unlock many things, — any building or any switch locked with a Northern Pacific padlock."
[4, 5] The admission of the exhibits was erroneous, as was the allowance of the cross-examination touching the use of the gas gun and the switch key. Weapons or other articles not used in the commission of a crime are inadmissible. State v. Lloyd,138 Wash. 8, 244 P. 130; State v. Hiatt, 187 Wash. 226,60 P.2d 71. As argued by counsel for appellant, the testimony elicited by the state in describing the exhibits was highly inflammable, far beyond the scope of any proper examination, and could only result in prejudicing the jury against the appellant. The greatest stretch of human imagination cannot bring to life in any manner a connection between the exhibits and the crimes charged in the information. It was reversible error to admit the articles in evidence and to allow the extensive examination touching their use.
[6] The last error urged by appellant relates to the cross-examination of several witnesses called by him who testified to his good reputation. In cross-examination, the witnesses were asked the following question by the prosecuting attorney:
"Q. Have you heard it said that the defendant, Rudolph Robinson, on or about April 24th of this year, attacked and attempted to rape Doris Hagen at her apartment at 2043 Renton Highlands?"
In each instance, counsel for appellant properly objected *Page 916 to the question and excepted to the court's action in overruling the objection.
The question raised by appellant is foreclosed by the decision of this court in State v. Stilts, 181 Wash. 305,42 P.2d 779. In that case appellant had called several witnesses who had testified to his good character. The prosecuting attorney was then allowed to ask one witness over appellant's objection "if he did not know that appellant was selling narcotics to high-school children, or was reported to have been making such sales." In holding that the trial court did not commit error in allowing the questions to be asked and the answers given we stated:
"On cross-examination of a character witness, the latter can be interrogated as to his knowledge of the defendant's acts and whether or not the witness has information to the effect that the defendant has been guilty of some misconduct. Appellant himself put his character in issue by calling witnesses who testified that it was good. In cross-examining these witnesses, the state did not transcend the bounds of legitimate interrogation, as defined by this court in the cases of State v. Austin, 83 Wash. 444,145 P. 451, and State v. McMullen, 142 Wash. 7,252 P. 108."
In so deciding, this court followed the holdings of the majority of courts in this country. The cases are listed in 71 A.L.R. 1504.
[7] Respondent contends that, in any event, the errors committed by the court do not entitle appellant to a new trial and cites as authority State v. Moody, 7 Wash. 395,35 P. 132, and State v. Redwine, 23 Wash. 2d 467, 161 P.2d 205. In the first case just cited, defendant was charged with the crime of murder in the first degree and convicted of manslaughter. This court held that error had been committed in the trial of the case, but that it did not require a reversal because of the fact that the evidence submitted by the defendant showed that he was guilty of the crime of manslaughter. It is clear that the case is not of aid to respondent.
The Redwine case, supra, discloses a situation far different from that present in the Moody case. In the Redwine case, *Page 917 this court adopted a rule foreign to any in the English-speaking world. The statement of the rule as applied to conceded error, was as follows:
"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."
We are now of the opinion that we were in error in adopting the rule just quoted. It is highly improper for courts, trial or appellate, to speculate upon what evidence appealed to a jury. Jurors and courts are made up of human beings, whose condition of mind cannot be ascertained by other human beings. Therefore, it is impossible for courts to contemplate the probabilities any evidence may have upon the minds of the jurors. The state attempts to safeguard the life and liberty of its citizens by securing to them certain legal rights. These rights should be impartially preserved. They cannot be impartially preserved if the appellate courts make of themselves a second jury and then pass upon the facts. One of the first propositions of the orderly administration of the law is that a defendant, either guilty or innocent, shall be accorded a fair trial. The fact that this or the trial court may consider the accused to be guilty in no wise lessens the court's duty to see that he has a fair trial. A fair trial implies among other things that the court exclude all evidence that has no material bearing on the case. The holding in the Redwine case to which we have just referred is overruled.
Our conclusion that the court committed reversible error demands that the defendant be accorded a new trial. It is so ordered.
DRIVER, C.J., BEALS, MILLARD, and BLAKE, JJ., concur.