[No. 34793. Department Two. Supreme Court October 1, 1959.]
THE STATE OF WASHINGTON, Respondent, v. WILFRED
WINTERS, Appellant.«1»
[1] WITNESS - CONTRADICTION - RIGHT TO CONTRADICT OWN WITNESS. In a prosecution for second-degree burglary and grand larceny, testimony for the State contradicting testimony of a prior witness for the State was properly admitted, where the State proved by other witnesses that certain facts were otherwise than as testified to by the prior witness, rather than attempting to impeach the prior witness on cross-examination; since a party is not bound by the testimony of his own witness but may prove the facts to be otherwise.
[2] SAME - CONTRADICTION - SUBJECTS OF TESTIMONY - COLLATERAL MATTERS. The test of whether contradictory testimony is collateral and, therefore immaterial, is whether the fact, which is the subject of such testimony, could have been shown in evidence for any purpose independent of the contradiction.
[3] SAME. In a prosecution for second-degree burglary and grand larceny, testimony of the owner of the firm that was allegedly burglarized that a witness for the State had not been employed by the firm at the time of the burglary was not collateral, where it was offered to contradict testimony of the State's witness that he told the defendant that he was employed by the firm and was authorized to sell cases of tuna which the defendant was accused of taking from the firm's warehouse, since it was part of the State's case to prove the unlawfulness of the taking in that the witness was not employed by the firm.
[4] BURGLARY - LARCENY - INTENT - EVIDENCE - SUFFICIENCY. In a prosecution for second-degree burglary and grand larceny, held that there was sufficient evidence to warrant the jury finding that the defendant had the requisite intent to commit the crimes beyond a reasonable doubt.
Appeal from a judgment of the Superior Court for Grays Harbor county, No. 49156, Poyhonen, J., entered June 20, 1958, upon a trial and conviction of second-degree burglary and grand larceny. Affirmed.
Paut B. Fournier and Orville E. Peebles, for appellant.
Monroe Stephens, for respondent.
FOSTER, J. -
Appellant Winters appeals from a conviction of second-degree burglary and grand larceny. The
«1» Reported in 344 P. (2d) 526.
[1] See Am. Jur. Witnesses § 797.
708 STATE v. WINTERS. [54 Wn. (2d)
assignments of error are: (1) That the trial court erred in allowing the state to introduce testimony contradicting previous testimony of a prosecution witness, and (2) that the intent was not proved.
The testimony of state's witness Dotson is as follows:
In a bar on January 6, 1958, Dotson met appellant and another, both of whom wanted whisky but were without money. On that occasion, Dotson testified he told them he was employed by the West Coast Fish Company to drive its one-half ton GMC truck, and that there were a number of rejected cases of cheap tuna in the company's warehouse which he had authority to sell. Dotson testified he told them they could take the tuna and get some whisky in exchange for some of it, which they did. Dotson entered the building through the rear and let the appellant in the front. They took a quantity of the tuna, exchanged one case of it for a bottle of whisky, and secreted the residue.
The prosecutor claimed surprise at this testimony, and attempted to impeach Dotson by prior inconsistent statements, to which appellant's objection was sustained. Thereafter, the owner of the West Coast Fish Company was recalled and testified, over objection, that Dotson had not worked for the company and that the company did not own a one-half ton GMC truck. This is assigned as error.
[1] The testimony was properly admitted because a party is not bound by the testimony of his own witness but may prove the facts to be otherwise. Isaacs v. National Back of Commerce, 50 Wn. (2d) 548, 313 P. (2d) 684; Schuster v. Sutherland, 92 Wash. 135, 158 Pac. 730. See, also, Northern Pac. R. Co. v. Everett, 232 F. (2d) 488; Peters v. United States, 94 Fed. 127, certiorari denied 176 U. S. 684, 44 L. Ed. 638, 20 S. Ct. 1026; 98 C. J. S. 647, § 630. Here there was no impeachment by cross examination, but, on the contrary, the state proved by other witnesses that the facts were otherwise.
[2] But appellant contends that the matter was collateral, in which event the contradictory testimony would
Oct. 1959] STATE v. WINTERS. 709
be immaterial. O'Neil v. Crampton, 18 Wn. (2d) 579, 140 P. (2d) 308; State v. Joffery, 129 Wash. 322, 225 Pac. 48. The test as to whether a matter is collateral or not is: Could the fact, as to which error is predicated, have been shown in evidence for any purpose independent of the contradiction? Warred v. Hynes, 4 Wn. (2d) 128, 102 P. (2d) 691; State v. Sandros, 186 Wash. 438, 58 P. (2d) 362.
[3] Dotson testified that he had told appellant that he worked for West Coast Fish Company and had authority to take the tuna. This testimony was not collateral because it was part of the state's case to prove the unlawfulness of the taking in that Dotson had not been employed by the company.
The untruth of Dotson's statement to appellant also supported the uncontested presumption that anyone who unlawfully enters a building does so with the intent to commit some crime therein. That, too, was an independent purpose. The owner's testimony on recall was, therefore, properly admitted.
[4] Appellant's second contention is also without merit. There was sufficient evidence to warrant the jury finding that appellant had the requisite intent beyond a reasonable doubt. Even if full credit were given to Dotson's testimony, the facts established justify the jury's inference that Winters intended to commit the crimes.
For example: Dotson testified that he told Winters that he had the authority to sell the fish for West Coast Fish Company. The subsequent acts of both Winters and Dotson were clearly inconsistent therewith, particularly the act of exchanging some of the tuna for a bottle of whisky.
The judgment is affirmed.
WEAVER, C. J., HILL, FINLEY, and ROSELLINI, JJ., concur.