State v. Barkuloo, No. 2760

No. 2760 | Wash. | Nov 26, 1897

Lead Opinion

The opinion of the court was delivered by

Reavis, J.

The defendant was convicted of an offense, charged in the following language:

“ That on the 9th day of December, A. D.’ 1896, at the county of Spokane and state of Washington, the said William H. Barkuloo and Andrew McLeod then and there being, did then and there unlawfully and feloniously, take, steal, carry and drive away two head of neat cattle then and there being, and which said two head of neat cattle were then and there the property of and belonging to one E. L. Wonch, and were then and there of value, contrary to the statute,” etc.

The defendant demurred to the information because it did not state facts constituting a crime, and did not substantially conform to‘the requirements of the penal code (Renal Code, §52, Bal. Gode, §7113). We think the facts stated are sufficient to constitute the crime of cattle stealing, and the demurrer was properly overruled.

Defendant also complains that the record only shows "The jury was sworn to try the cause well and truly,” and that, while is it not necessary that it should contain the oath which was administered, yet if it purports to disclose the oath administered to the jury, it must show that the oath required hy the statute (Code Proc., §1303, Bah Code, §6936) was administered; and that the oath administered here was not in the statutory language. It is unquestionably the better practice, if the record purports to set out the oath administered to the jury, that the terms of such oath should be truly stated and conform to the statute. It is not necessary, however, for the record to contain the language of such oath. The statement that the jury retired in charge of a sworn bailiff is sufficient to show that the bailiff was duly sworn.

After the case was finally given to the jury for consideration, they were instructed that when they arrived at a verdict it might be signed, sealed and delivered to the foreman, and thereafter the jury might separate and all return into court together when the verdict should be returned in court. The jury sealed and delivered their verdict to the foreman, and then separated before the verdict was returned into court. Por this error the judgment must be reversed upon the authority of State v. Bogan, ante, p. 43.

In view of a new trial it is not necessary to discuss the objections to the introduction of testimony made by the appellant.

Demanded for a new trial.

Soott, C. J., and Dunbar and Gordon, J.L, concur.

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Concurrence Opinion

Anders, J.,

(concurring).—The learned trial court undoubtedly erred in permitting the jury to separate after the cause was finally submitted to them, and for tbat reason tbe judgment must be reversed. But I think the judgment ought to be reversed for another reason, and that is that the jury were not sworn according to law, as the record itself shows. The legislature having prescribed the form of the oath, that form should be at least substantially followed in all cases. And this, the record affirmatively shows, was not done in this instance.