State v. Beck

February 3, 34636. En Banc. [No. 1960.] Respondent, The State Washington, Beck, of David v. D. Appellant.1 Ferguson & Burdell, Burdell, S. Donald McL. Charles Keough, appellant. Davidson, John J. for respondent. Smith, Charles O. Carroll and Charles Z. for disqual judges One of of this court Per Curiam. — ified participating from himself in the case. decision of this eight remaining judges, conferences, after numerous equally appear divided in their decision for the reasons ing opinions filed. being majority

There no reversal, affirmance judgment the trial stands. court

It is so ordered. judgment appeal J.—This is an and sentence Hill, grand larceny upon guilty charge entered a verdict assignments Twenty-nine embezzlement. of error raise multiplicity of issues. prominence itself, The trial from the de- divorced presents very simple fendant, factual issue. pos- evidence had state’s showed defendant belonging automobile, of a 1952Cadillac to the Wes-

session Teamsters; sale; tern that he authorized its Conference of (2d) 1Reported P. pro- dollars, and hundred for nineteen

that was sold personal ac- deposited in one of ceeds the sale were Wes- control; that the exclusive counts over any part of received Teamsters never tern Conference nineteen hundred dollars. the charge support that he did the this evidence in

To meet feloniously unlawfully wilfully, secrete, “. . appropriate his own use $1,900 the said withhold or thereof;” deprive the owner and defraud intent to thought testimony the car was there was defendant city; he returned when sold while he the was out of price purchase the found that the car had been sold and deposited hun- nineteen account, he delivered been in his apply bookkeeper it to him to dred dollars to and told or of Teamsters account of either the Western Conference the car. Teamsters, owned the Joint Council of whichever patently be to meet was that could contrived It a defense exigencies the case. unchallenged. The basic The state’s case was clear and jury whether or not issue for the determination of explanation presented the defense. The believed guilty jury’s to that issue. was the answer verdict of adopt appellant’s con- for the We shall ten divisions twenty-nine assignments sideration of of error. longest Jury Proceedings. is the section This

I. Grand appellant’s (some pages). brief disagree completely appellant We func- with the grand jury period tion of a in state. In the when this by grand jury prerequisite prosecu- indictment was a to a (and felony, appellant tion for a it was said seems to day grand present applicability) have assumed its jury the defendant and was meant to be a shield between part, upon prosecutor. For the most zeal of cases which the come either from time when relies necessary, jurisdictions or indictment requisite. where it is still a grand state intended this and was not be a shield for the pro- accused. Our state constitution that,

vides required “. . Offenses prosecuted heretofore to be may prosecuted by indictment be information, in- prescribed by dictment, as shall § I, law.” Art. 25, Wash- ington state constitution. Furthermore, “ . No shall be drawn or summoned county, except superior judge thereof shall so order.” Washington §I, 26, Art. state constitution. prosecutor’s information has become the standard bringing charges means of state, inas all other states long which authorize its use. It been settled has that there rights is no denial of Federal constitutional involved prosecutor’s substitution information jury’s (1884), People indictment. Hurtado v. of California 110 U. 111; S. S. Ct. State v. Nordstrom 506, 382; Wash. 35 Pac. affirmed 164 U. S. 705. grand jury against

The is now used not as a shield prosecutor, past, replace, zealous inas times but to on occa- prosecutor sufficiently (for sion, the who is not zealous reason), presently, whatever and, often, more as as a valu- (hence, expensive weapon sparingly) able but used to assist prosecutor investigating people a insul- conditions investigation by procedures. ated from the usual It has been said that, inquisitorial power “The is the most possesses to-day valuable function which it and, far more any supposed protection gives than accused, it

justifies engine its survival as an institution. As an of dis- covery against organized counterpart. far-reaching crime, it has no ” Jury Proceedings, . In . . re Grand 4 F. (E. 1933). Supp. D. Pa. inquisitorial accepted body, It must be for what it is: an an accusing body, a and not trial court. are in- functions Its vestigative judicial. and not It is not concerned that the evidence, available, then establish the commission of beyond State crime a reasonable doubt. v. Lawler L. Wis. 267 N. 105A. R. 568. The W. end result judgment sen- grand jury’s is not of a deliberations concepts consequently, charge; merely tence, but grand jury, apply procedural process not due do necessary prevent prejudice may except they as subsequent proceedings; thus, a accused or a witness against privilege deny grand jury may not the constitutional may impair constitutional it incrimination, and self against protection and seizures. searches unreasonable community accusing “the voice of the (Judge Kittle, In re Learned Hand members,” its may (S. 1910)), properly re- Y. 946, 947 D. N. Fed. community. It the sentiment of flect community spirit into the en- of a “. . breathes investiga- effect an institution for forcement law. Its highly placed, creates the elan of tion matter all, no how Supp. Smyth, democracy. 104 F. .” United States v. (N. 1952). 279, 291 D. Cal. S. D. appellant, suggests hand, other jurors disqualified they presumably reflected because they community came. sentiment of the from which appellant’s argument person The inference from the is that a publicity large who can of adverse from secure amount thereby newspapers, immune radio, and becomes television, notoriety grand jury investigation; more investigated. more reason he not be achieves, the should Investigative county, agencies city, state, or federal— — they cry do not be- wait for the hue and to die down before gin investigate charge against an accused. Nor or to file a why grand investigation we should be handi- do see capped delayed publicity of whatever or because of kind merely makes the accusa- character. Because a try general that, rule is accused, tion not and does contrary, preju- barring statutory provisions bias or to grand jurors part or more of the is not dice on the of one quashing ground In United States v. a for the indictment. 1957), (D. Supp. said, C. it was 147 F. Knowles, theory grand jury, of a does “The of the functions basic impartial grand jurors require un- that should be entirely respect, position their different In this biased. petit jurors. from that of The Sixth the that the Amendment expressly provides Constitution of the United States ‘impartial’. trial in a criminal case must be No such requirement grand respect juries is found in the Fifth guaranty against prosecu- Amendment, which contains the presentment for tions infamous crimes unless on a or in- grand jury. hardly necessary dictment minded that each of these Amendments was It is re- be adopted at the part group consisting same time as a of the first ten pass guilt A does not on the Amendments. innocence of the merely

defendant, but determines whether brought purely accusatory he should to trial. It is an be body. fact This view can be demonstrated investigation jury may initia- undertake an its own event, tive, or at the one In behest of of its members. such may grand juror instigated proceeding who obviously hardly indictment, result to be an can be deemed impartial, disqualified for but he is not that reason.” In Coblenz v. State 164 Md. 166 Atl. 886, 894, 895, A. L. R. it is said: “ requirement ground imposing . . we find no for they objection unprejudiced, demands. must be as the contrary, requirement On the such a seem inconsis- would knowledge, upon tent with their own freedom to accuse their persons knowledge who come with sufficient to serve as likely come basis indictment with the conclusion knowledge They prejudice

and act and without to which that leads. must conferring secretly upon convictions, their own after any they required interference; but are not any prejudice. come without ...” (S. Rintelen,

And in United v. Fed. 787 D. N. Y. States 1916), 789), Judge Augustus (p. N. Hand said “ intelligent grand hardly juror . An can found general opinions who has not decided derived from his may knowledge public notoriety. as to case of He have feelings general passionate subject, even on the question affect and actuate him. The is not what his feel- ings honestly were, but whether he voted for an indictment upon competent evidence. an can be That indictment quashed even important was grand jurors personal prejudices, because the every ones,

ill-founded would leave indictment irrespective of the evidence on which it case, open found, to attack. ...” establish, that quoted authorities as the reitérate,

We barring statutory provisions the con- general that, rule is part more of the trary, prejudice or of one on the or bias grand jury quashing ground of a grand jurors for a not a is judgment setting on the based aside indictment, or jury petit an indictment. a trial on such after verdict of a says must be this case appellant consideration our premise law, was upon a matter of he, that as based grand jury. unprejudiced impartial and entitled to premise con- correct, we are If we assume that the showing any mem- no fronted fact that there is with the against grand prejudiced jury was biased or ber of the appellant. the members or all of contention is that some His against prejudiced him grand jury or must be biased publicity received. which the unfavorable because of unsupported Jury on such not be set aside verdicts will suppositions. appel- premise unless, as the

However, the is not correct requires grand urges, grand jury lant our 1854 statute jurors only support impartial unprejudiced. The statutory require- suggestion for the that there is such long- ment is contained one section relates gone purpose for the where a met situation custody persons considering released then in or whether in- to answer for an offense” should be bail and “held challenge might panel person Such a dicted or released. (RCW 10.28.010), properly or because it was drawn challenge grand jurors might individual “ qualification want of sit as such . for reason of juror; opinion court, a state of mind when, in the juror, him render unable to act such as would exists impartially prejudice.” RCW 10.28.030. without challenge by “person in There was a reason for such custody offense,” for an but or held to answer person. a modern starts was not When such suggest investigative process ridiculous to it seems its scrutiny proceed- personality comes under each new any mem- ings stop whether be determined until it can must against prejudiced him; grand or is biased ber of the grand juror prejudiced, and, if a is so biased the investi- gation contemplated, is at an end. Such a situation was not days, provides even in territorial for our statute that a juror testify knowledge must of his own com- of offenses testimony may investigation mitted, and this initiate such grand as would lead to an A indictment. RCW 10.28.130. juror testifying disqualified joining so in is the delib- voting. erations and RCW 10.28.140. Both sections assume grand juror testifying properly that a so is a member of the panel, require- supra, any and, stated in State, as Coblenz v. grand juror completely unprejudiced ment that such is be right obligation in- his inconsistent his to share grand jury. formation with the phase

To summarize this case: gave 1. We are conclude that a unable to because statute “any person custody in held an or to answer for offense” right challenge grand juror prejudice, a for there is statutory grand requirement jurors a other be prejudice against any without bias or one them. indicted Persons for whose benefit that statute enacted are of protection. course entitled to its statutory preju- requirement, That, absent such bias or grand part jurors

dice on the of one or more is not ground setting judgment a aside a on a verdict of based guilty by petit jury. returned a showing prejudice.

3. There is no of bias or charge grand jury to the is criticized and con- said to prejudicial grand jury stitute error. we have indicated, As special purpose. in state convened for a It was is necessary clairvoyant powers not to leave to the of this they the determination that had not been called investigate persons King all then held in the county jail felony charges, as RCW 10.28.010 10.28- contemplate; proper .030 seem to and it them advise they special purpose. called for been general stated, rule,

It is the court has a wide calling matters of discretion concern to the attention of grand jury. Jury, § 864, 24 Am. 45; Jur. Grand 21(b) § Juries, . C. J. S. Grand Some courts have said jury subject charge grand is not court’s Smyth, supra; judicial Bethel v. review. United States v. (1924), 402; A. L. R. State 162 Ark. S. W. Alger Judge supra. said Lawler, State v. As James Fee Smyth, supra, discussing opinion United States v. 292), subject (p. instructions “ may give [the court] . . . He instructions do precedents constitute which cannot be controlled may appellate political or corrected courts. These be They may entirely may manifestoes. include erroneous. These fit cautions admonitions to local conditions and guard against dangers judge which the exist at believes ” moment. says, and, ain footnote “There has. never been an instance where instruction appellate was held If error court. good

indictment irrespective matter, and the trial fair, that ends the may grand judge what the have to the said jury.” only preroga- It must be remembered that it not the duty grand superior tive the but court to direct the jury’s superior attention to those matters court judges, grand jury, who called the to merit believed investigation by doing, proper it. In so it was for the court publicly allegations pub- to make note facts known and licly heard, as frame reference from which the jury begin investigation. should its speaking supreme Vanderbilt,

Chief Justice for the court Jersey, said, of New has grand independent body an “While is in investi- gating making presentments the facts and in and indict- necessarily judge

ments, presiding looks to the in the county only govern for instructions on the law to its particular in deliberations of crime or of matters also as to the but matters public concern that should receive atten- its Any matter tion. unusual such conditions County manifestly specific Camden Jail calls for instruc- adequately tions, if the criminal law is to be enforced and public pub- if the lic interest the efficient administration of ” . . In is to maintained. . re institutions Camden 482 (2d) Jury (1952),

County 34, A. 23, 10 J. 89 N. Grand 416, 423. any charge, have if

The extent of our we review clearly opinion right in the it, limited, as stated to review (2d) (1953), 517, v. Miss. So. in Wheeler State (p. 144) whether or not the “ charge language judge’s had the effect . . . returning coercing grand jury dictating into to or ” against appellant. indictment coercion of dictation or

We are to see element unable charge grand jury did The court in this case. to the directing grand jury’s have what it should done why called. to the it was attention reason prosecutor claimed misconduct of turn We now apply appellant attempts grand jury. before investigation. trial of a standards course, free from all outside Of must be during influence its deliberations interference and voting, parties requires no other than the and this present grand jurors at such time. Cases themselves be Attorney Pelletier 240 Mass. General v. such as (1919), 188 v. Ind. 407; E. Williams State N. (D. Wells, v. 163 Fed. 313 C. Idaho 209; E. United States N. protection 1908), upon principle of are decided they bearing grand jury’s have no deliberations, present case. supra. appellant quotes v. Wells, United States Judge interesting Hand in United States It is note discussing supra, the Rintelen, in claimed misconduct of v. 792), attorney, (p. said of that case district by upon relied the defendants is United “The case States attorney the district Wells, v. 163 Fed. 313. There grand jury gave a list of the defendants commented the weight evidence, indictment of the but before the on the by signed requested leave the room one the of was was jurors, discussion, and refused to that there could so be go, could be until the indictment the indictment said that no discussion - sign signed, directed foreman was reading permitting consideration or of further without

483 indictment, and withheld the in- various documents from spection grand jury, they of the the contents of which obliged attorney take from the of statements the district only. utterly It is manifest that the of that facts case were different from those of the at case bar. indictment evidently attorney, there was controlled the district finding grand jury, consequently not the plea of the properly I am abatement there sustained. re- ferred v. Wells, to no other decision than United States supra, where an indictment has been held bad reason attorney jury.” a district conduct of before the Judge emphasized independence Hand then grand jurors part freedom from coercion on the is thing protected, (pp. 795), to be and said “ plea . A based conduct on the of the district at- torney adjudged before the be insuffi- should prejudice clearly cient unless it defendant shows alleged irregularities indicates that affected the grand jury. ap- proper action of the pears rule That this is Agnew States, various decisions. v. United 165 Sup. U. S. Ct. Ed. States v. v. 624; L. United American Co., Tobacco United 774; Nevin, Fed. States 199 Fed. United 833; Gradwell, States v. 243. The Fed. supra, dictum in Wells, United States v. far it is not so down, accord with the rule I have laid does not follow weight authority.” said, He also, if “ attorney, ... a. comment on the tes- district timony indictment, were held-in itself to invalidate opportunity dilatory pleas for technical motions enlarged.” greatly criminal cases would be prosecutor during properly Where the in attendance significant find a lack witnesses, examination we precedents concerning judicial review or control conduct of such examinations. The conclusion must be has never examination witnesses before judicial been intended to matter as in the be control petit jury. examination of witnesses before any surprising gap Nor does this constitute frame- system justice. Beyond enforcing work of our of criminal requirements grand jurors drawn and so community representative impaneled from as of the to be (State Murphy Superior they v. Court which come ex rel. 32), they given 284, 144 and that be 82 Wash. Pac. opportunity secrecy in freedom the in to deliberate any compulsion, very exercised find little control we goes grand jury case is known over what on in the room. No process applied to due in which considerations have been procedures an the which a indict- reaches ment.

Judge gives words, in Learned Hand these reason doings purpose secrecy grand jury’s “One against They judicial are to insure kind control. community accusing members, voice of its only protection from in the conscience such accusation is except sporadic Therefore, in and ill-con- of sidered tribunal. supervision instances, the taken courts have never and, them, with cer- over what evidence shall come before they very exceptions, remain what tain not well-defined jury originally petit was, the Grand Assize and what irresponsible the com- be, to utterance of has ceased body munity large, general at answerable they random, and citizens, from at with whom whom come merged. punctilious they again at A court no once shows respect regulating their conduct. We for the Constitution English inheri- it in our took the institution we found most faith- tance, who best serves Constitution by a fully significance, not he who follows its historical pedantry priori limitations tries a to formulate its verbal ” supra. In Kittle, re and its extent. grand again emphasize conclusion, In we would guilt jury or determine that it does not accusations; makes over, take and it becomes The trial then innocence. courts guilt person prove of the state to burden indicted. jurisdiction

Were we mandatory, compelled there we hold would be right no violation of defendant’s been arguendo, jury present assume, If we that there case. irregularities present require case to are sufficient jurisdiction quash indictment, then, such a since statutory right grand there is no constitutional

485.- irregu- how such state, in this we are to understand unable find no larities could We prejudice appellant. or com- constitutional, statutory, violation appellant’s mon-law rights proceedings. the present grand jury Change

II. a a Continuance Motions for Venue.

A. Continuance: jury

The indictment returned on July 12, months, 1957. The trial five ten began lacking days 2, The trial had (December originally later. been 1957), set for for more than October but was continued a that month on additional time was representation for the necessary to his defense. appellant prepare here, There is no haste claim undue and no that there not time of a adequate defense. preparation The wanted further appellant continuances the ground inflammatory publicity concerning appellant had an created in which impossible it was for him atmosphere a fair obtain trial. for a only continuance is found statutory ground 10.46.080, RCW which has to do with the absence of ma- evidence, terial and it has here. significance have, no We however, orders reviewed a continuance denying on grounds See State v. Collins similar those here. urged (1957), 660. In the Collins case we 740, 743, Wn. P. (2d) (2d) said granting continuance was requested with the trial discretionary court. find no We abuse of discretion here. ex post tries to test of apply facto on the who jury

number admitted panel prejudice. Appel- lant fails to make clear that all such prospective jurors excused, and that thirteen were selected and ac- jurors by both sides within cepted very reasonable time. All on voir dire examined fifty-five who were people had, course, heard of the prospective jurors case either television, radio, through or the but nine- only newspapers, teen were excused for prejudice. prospective

It is-the of this fact law state that the juror upon expressed opinion “has formed or what may disqualify read,” have or him; heard shall not prospective juror to excuse for “cause” satisfied, . court all “. must be from the cir- disregard juror opinion cumstances, that cannot such try impartially.” the issue RCW 4.44.190. Judge Geraghty As v. Patterson said (2d) State 239, 245, 48 P. Wash. suppose

“. It is that it was difficult reasonable panel select men and women who had twelve opinion or heard or read about the case and formed some concerning impression the event. Under received some present-day conditions, select a minds free impression opinion would be such tentative some panel possible by drawing the from hermits or illiter- information and even these not be isolated from ates, would by conveyed radio.” proper applied to test be case, In that we held opinion, prospective juror not an or he has is not whether a notwithstanding disregard opinion, can, an he but whether according impartial and verdict it and render a fair evidence. examination called the voir dire of those record of

The any jurors negates prospective contention that continu- as necessary appellant trial, a fair to insure the ance was Judge Douglas (on justifies Malcolm No- the statement 1957), denying motion for a in continuance: vember “ your impressed . not at all contention . . I am a fair trial in com- Beck, Sr., cannot have this Dave arguments munity such as do these at time. I believe this high-cali- intelligence poor and fairness credit to the community, jurors and I am we have in this bered many years observing for the trial of cases satisfied jurors observing type quality that we here and have jurors just possible to find 12 who is . that it including defendant, as fair give defendant, can a give found him in could one be in December trial May. .” B. Change of Venue: urges prejudicial appellant error to refuse that it

The change application or What- of venue to Snohomish county. com procedure change for a of venue is set forth RCW

10.25.070,which reads as follows: may by court, affidavit, “The defendant show to the county he believes cannot receive fair trial owing prejudice pending, where the action judge, against prejudice or excitement or the defendant county may thereupon part in demand thereof, or some county. application shall

to be tried another granted ground prejudice excitement be or prejudice judge, than the affidavit of other unless supported evidence, the defendant other the nor judge ground upon case unless the is satisfied application is made does exist.” statutory requirement the mo-

To conform to the where against prejudice de- “excitement tion is based on “supported fendant,” the affidavit of the defendant must be granted evidence,” other such a motion will not be judge ground ap- “unless the is satisfied the on which plication is made does exist.” supported

The affidavit was not evh newspaper dence stories. The other than headlines and alleged support affidavit in of the motion was based on hostility against prejudice him belief that the was less extreme in the counties of and less intense Whatcom and King county. than it Snohomish Appellant an affidavit. refers to this as uncontroverted The could not well controvert what be- state lieved. have reversed a conviction for case in which we change grant a of v. Hillman

failure to venue was State (1906), 615, There, 42 85 Pac. 63. affidavit set Wash. inflammatory newspaper of articles and forth the content 618): alleged (p. organization an

“. . . that there was known as the composed large Association,’ aof number ‘Hillman Victim of creating public organized purpose people, for the sen- 488 against appellants, against appel- particularly

timent lant meetings and public Hillman, which said association means of by mailing postal efforts, and individual cards and reflecting upon the done Hillman, character of said had ” prejudice against appellants much to arouse . . . these 618), opinion points (p. Also the out “ signed by something . There was one affidavit thirty King county, over stated that affiants residents of wherein the they had in the read unfavorable comments by large newspapers, and had them num- heard discussed people; bers of articles discussion dealt with said and guilt defendants, and that the same innocence or always that the com- defendants; most unfavorable to widely spread' publications ments that said had so caused been public opinion, prejudiced mind, in their not had such extent that a fair trial could be county; they organization had heard of the formed harassing purpose courts, and Hillman else- said reported where, to be of said association were and efforts very injurious said Hillman.” allegations fact, which, have In the Hillman case we Here we have controverted. true, if not only legal could have been upon belief, information conclusions based capable of contravention. accompanied alleged have offenses been Even where against indignation prejudice by great public a deal of appellate a court not disturb deter- accused, will change by the trial court that a of venue should mination showing granted of a of a manifest not be absence (1936), 464, v. 185 Guthrie Wash. abuse discretion. State (1930), (2d) 504, 160; v. 158 56 P. State Schneider Wash. (1930), 1093, 571; 72 A. L. State v. 291 Pac. R. Schafer Lindberg (1923), v. 125Wash. 240, 833; 286Pac. State Wash. Wright (1917), 41; 215 Pac. State v. Wash. Welty Pac. 9. v. 65 Wash. 645; Pac. State n Lindberg the accused director of bank case, In the was many great stockholders which had failed. It great many depositors, and the failure was matter more 54), (p. public court there interest concern. said is uncontroverted contains “. . This affidavit prejudice to can inferred that some recitals which it against parts extent county existed in certain the the of generally particular ques- bank, officers independent tion one on which this court could exercise an judgment, say permissible we are free to that it would be by a reach conclusion different from that reached question trial But court. is not of the first instance one By (Rem. express provisions in this court. of the statute Comp. 2019) ques- §§ [P. §§ 9398], Stat. C. tion is trial vested the first instance in discretion of ruling gross court, can review its we abuse. ...” Welty, long quotation a court then used from v. State

supra, twenty repeated enough which has fill been times to pages (We it.) reports. adopt repeat our do not but Lindberg Our conclusion in the case was that found we noth- ing warranting holding grossly a that the trial court abused (p. 55), discretion, its and then said

“ purpose change . The of venue is to secure impartial jury, to the accused a trial before if affirmatively record does not disclose did accused very persuasive trial, have such a it is fact that change. denying the trial court did not err in ...” present find, case, We no abuse of discretion denying change the trial court in the motion for of venue; having and conclusion, is bolstered our after studied record, did, entire the defendant fact, have fair trial.

III. Right Jury Transcript. Use Grand special deputy prosecuting Devin, William F. one of the attorneys grand jury, concerning before the testified cer- appellant tain testimony statements made in his be- grand jury. testifying fore the Mr. Devin was not from transcript, document or but his recollection of answers given by appellant. urges transcript that he was entitled ato testimony his entire before to facilitate of Mr. Devin. He cross-examination cites no authorities support proposition. passes lightly of such He but did the trial court make appel- fact that available to testimony attorneys portion appellant’s before

lant’s grand jury varied Mr. Devin’s recollection the which thereof. right, a entitled, matter of to

A defendant is not as a testimony grand jury; copy transcript of of his before transcript avail- and the to which be made extent such a will able to him the sound discretion of trial court. is within (2d) Ingels (1940), (2d) 944; 676, 4 104 P. State v. Wn. (2d) (1933), 656, 27 P. 1065. State v. Morrison 175 Wash. Pittsburgh the rule in the federal courts. This likewise (1959), 395, 3 L. Plate Co. v. United States 360 U. S. Glass (2d) 1323,79 S. Ct. 1237. Ed. Jencks v. United cited such as

The has cases (2d) (1957), 657, 1103, L. 77 S. Ct. 353 U. S. 1 Ed. States (2d) (1957), Superior Cal. Court 1007, and Powell v. making (2d) have to 704, 312 P. do witnesses available to defendant the written statements possession of the of the defendant in the confessions prosecution. recently (June Supreme has United Court

The States encompass 1959) Jencks decision ruled that the does Pittsburgh In Plate Co. v. United minutes. Glass judge right supra, the trial refused the defense the States, testimony key government inspect of a wit- supreme held that the determination of such court The ness. the sound discretion of the trial was committed issue judge; defendant entitled such a dis- justice setting required only ends of aside closure where maintaining secrecy policy public proceedings. is on the defendant The burden to show for it. United States Proctor particularized need v. & (2d) (1958), 677, 2 L. 356 U. S. Ed. S. Co. Gamble Ct. recently explored the whole area covered

have We Thompson (2d) v. in State Wn. case Jencks (2d) 319, and concluded that it was a matter P. 100, 338 trial court action whose will not discretion appeal there is a unless manifest abuse of disturbed prop- convinced that the trial court We discretion. erly allowing the defendant exercised its discretion in testimony transcript limited access of his before grand jury. Propriety

IV. the Prosecution's Conduct To- ward Defense Witnesses. gist assignments four error is the claimed

prejudicial attorney ap- prosecuting conduct of toward pellant Guiry witness Marcella entitled him to prosecu- new trial. The claim is that in each “the instance attempted jury by improper tion to influence the tactics relating right against self-incrimination.” separately.

We will consider the situations The witness Guiry secretary. appellant’s Marcella Before the grand jury she had invoked the fifth amendment and de- testify clined to matters, as to certain at but the trial she testify did as to those matters.

She asked, was if her cross-examination, to answer questions certain before the were the as same appellant’s her answers court. The claim she was that say either “no,” had to or disclose the in- fact that she had preju- voked the fifth amendment, and that either would be placed position dicial. She was never in that because an objection question. Appellant urges, was to sustained asking question prejudicial however, of the was (1953), (2d) error; Emmanuel and relies on v. 42 State Wn. (2d) (1930), 1, 386, Carr 253 P. and State v. 160 Wash. persistent 1016. These were Pac. cases miscon- applicable was, here. There here, duct and are not effort no objection pursue further after the to the matter was sus- tained. judgment this,

In such situation trial court upon passing motion for a new trial must be accorded judge great weight. any able trial is to observe reac appellant by jurors unfavorable to tion reason of the mis position in much counsel, and is better conduct of than is prejudicial, whether it has been determine court Dis (2d) (1948), cargar (2d) 30 Wn. 191 P. 870; v. Seattle (1945), (2d) (2d) Wn. Luven 163 P. State v. Van .492 P. O’Neil v.

600; Crampton (1943), (2d) 579, Wn. (2d) 308; Marlowe v. Patrick 647, 44 P. 181 Wash. mis (2d) trial court did not see prejudicial, asking question objection conduct of the ‘sustained; discretion in his and we find abuse of no consequence refusal a new trial claimed grant misconduct. contention, turn now his regarding

We appellant’s stand, own examination. When he took the he limited official rather to matters testimony rigidly concerning his Inter- organizations, with various labor such as the position Teamsters, national Brotherhood of Conference Western Teamsters, Teamsters; Council of the loca- and the Joint Seattle; C., D. his em- Washington, tion of his offices & Friedman, firm of Lobe accountancy ployment financial books and records. He did Block for his personal transaction, which was the testify respect indictment. basis cross-exam- during

No was made objection appellant’s matter was imma- ination, inquired about except exami- terial, irrelevant, of the direct beyond scope one which we will (There exception concerning nation. make special reference.) testified, Guiry that Mrs. Marcella took objection,

He over B & B so far as the Investment Company care of his books concerned; her identify handwriting could not exhibits; that certain accounts seemed be in on certain business; that there was sale with his prop- connection the Callahan, he not recall details; but did with erty Cadillac, of a amount the sale received he authorized dollars; the money was deposited hundred nineteen was account. Company B B & Investment consistent with the entirely appellant’s was All of which case. theory as questions to whether he were sustained

Objections final Cadillac; when the was payment made 1952 drove property; and whether the Beck-Callahan ap- sale of on the proceeds when sale were in town de- was pellant Company B Investment account. B & posited you question car, do know?” When the of “who sold the appellant ex- counsel for asked that asked, jury, to the court in the absence of cused, and stated question being scope of the direct “That outside having Counsel, examination and been .asked and since failure it is in effect a comment on the defendant’s tify to tes- respect to the car and violates his constitutional rights, I move for a mistrial.” objection

The motion sustained on denied, and the ground beyond scope the direct ex- that it went amination.

Appellant urges that the is the cross-examina- rule stand, tion of a defendant who takes the is limited to sub- jects which testified, the defendant and that examination beyond scope cases, of the direct in such examination, right against a violation of the constitutes defendant’s self incrimination.

When a defendant takes the stand in his own behalf he is subject to the same rules on cross-examination as other wit (1952), (2d) (2d) nesses. State 174, v. Putzell 242P. Wn. (1950), (2d) (2d) 180; State v. Jeane 35 Wn. 213 P. (1949), (2d) (2d) 633; State v. Ternan Wn. 203 P. opens up subject 342; and, if he examination, direct (1935), can be cross-examined thereon. State v. Johnson (2d) 159; Wash. 40 P. State v. DeGaston 5 Wn. (2d) (2d) 73, 104P.

The latitude to be allowed on cross-examination is within Schneider, sound discretion the trial court. v. State supra; adequately supra. pro- Jeane, v. court State trial appellant. tected the urging, Guiry, that, of Mrs. the case though objections asking sustained,

even questions prejudicial error. itself constituted again supra,

Appellant Emmanuel, relies on State v. to- gether supra; Carr, with State v. but the circumstances readily warranted reversal in those cases are distin- which guishable those with which we are here concerned. appellant’s right against fail find indication that We self-incrimination violated, was or that the court abused its handling discretion in its of his cross-examination. V. Admission and of State’s Exhibits Nos. by appellant’s objections The issues raised to state’s against exhibits Nos. 17 and 18 must be examined back- ground position of circumstances, and the state appellant and the with reference them. disputed

It is not dollars, that the nineteen which hundred having charged embezzled, de- was posited February 3, 1956,in a bank of which he was acount being owner, the sole the account of the “B &B name Investment Co.” in item was entered

How nineteen-hundred-dollar “B B became the records of the & Investment Co.” the sub- ject controversy. the nineteen- The state insisted that in the “B &B item entered Investment was hundred-dollar proceeds sale Beck-Callahan Co.” records as support intention property. an inference of an would This the nineteen source of hundred dollars. the real to conceal &“B B Investment Co.” dis- was conceded It is prop- property posing known as Beck-Callahan of real & erty, received the “B B Invest- $16,900 been January source of 1956. Co.” ment from position support its was exhibit evidence The state’s prepared copy March, photostatic a work sheet 17,a No. employed E, Houston, an accountant Carl preparing appellant’s accounting firm Taking B his information the “B & return. tax income (a ledger journal rec- or loose-leaf sheet Co.” Investment under, work sheet “Sales of real ord) entered on he , part $16,900,00,”as assets other estate Beck/Callahan ...receipts January, $19,- “Beck/Callahan February receipts. He part discovered his as 000.00,” changed amount, $1,900.00. it to latter toas error mistake, urging Houston had made a The defense entry the “B & B Investment Co.” actual and that the February, 1956,was “Sale journal for Cadil ledger sheet by defendant’s No. shown exhibit $1,900.00,” Auto lac ledger or the sheet the claimed to be .which defense journal from his information. which Houston secured not was mistake, make a it discovered

If Houston did grand jury, and his before the until after had testified body photo- been work sheet had before that been photostatic copy 17 State’s No. was stated. exhibit in the The actual work sheet remained that work sheet. possession accounting produced firm until trial. of the at the appeared it that the nineteen hundred dollar that time At real from “Sales of estate and other item had been moved heading new to a “Sale of Auto.” assets Beck/Callahan” original change, was work sheet admitted as With this exhibit No. 18. state’s

Houston testified that it was a result as investigation first discovered that that the accountants sale nineteen dollar item came from the of an auto- hundred testimony grand jury, he mobile. After before the did again ledger not examine “B &B Co.” sheet Investment journal August September, or until in 1957. re- or On his entry $1,- examination he found “Sale Cadillac Auto 900.00,” No. 22, as shown defendant’s exhibit then change, referred, we ex- made have state’s No. 18. hibit March,

One can believe that Houston made a mistake in original ledger 1957, and that 22 exhibit No. is the journal; copied sheet or he can that Houston cor- or believe Guiry rectly March, 1957, what he and that saw Marcella ledger journal prepared a new or it sheet and substituted original investigation jury for after and be- 22 are in fore the trial. All entries on exhibit No. her hand- writing, possible. and such a would have been substitution ledger journal must be remembered that the sheet or

It part Co.” “B &B Investment was the books subpoena appellant, which the state could not records beyond produce for the reason that that he was or demand Mor- power to enforce the demand. State v. of the court McCauley (1915), 832; 151 State v. 87 Pac. Wash. den (1897), make Pac. To such a demand 221. Wash. warranting presence be error would (1915), Pac. 514, 145

reversal. v. Jackson 83 Wash. State 17 and Nos. We satisfied that the state’s exhibits secondary avail- evidence, the best were admissible as appellant’s showed records able to the state of what Hartzog v. nineteen hundred dollars. the source of the Lisansky (2d) (1954), (4th A.) 706; 217 F. United C. States (4th A.) (2d) 846, 67 31 F. C. v. United States weight jury. A. L. R. 67. Its ledger urged offered The defense that when it 22), (defendant’s journal best it was the No. sheet exhibit secondary That, admissible. evidence, and evidence authenticity 22. The No. of exhibit course, assumed the obliged by, believe, to nor was the was not bound state entry Guiry’s testimony “Sale had made that she Mrs. part 1956; March, in the first $1,900.00” Auto Cadillac ledger journal sheet or had not seen that she and question it the court 1957, until she saw March, since (2d) (1954), Wright 777, 270 P. 44 Wn. v. room. Unosawa (2d) 975. opinion, present he made a Houston’s does

Neither authenticity assumption (based on his it is mistake 22), nullify from be drawn inference to No. of exhibit entry he believed original sheet, his work that time. at be correct of how this on the issue both sides evidence

All ap carried in item had been dollar hundred nineteen jury. or not Hous Whether pellant’s was before records entry one, or original a correct work sheet was on his ton’s jury. Lbr. N. Wilcox Burrill v. S. for the error, was was an 824. 571, 32 N. W. Mich. Co. Jury. Separation

VI. prohibiting 10.49.110, RCW invoked The defendant jurors per- argues jurors. He separation of prejudice to the defendant is separate, mitted conclusively presumed therefrom. plaintiff’s brief are referred specific instances

four: nonjurors, talking two Juror with No. 3 observed elderly

a woman and an man. her husband. Eaken 2. Juror Eleanor conversed juror Eaken, Eleanor 3. On one visit her husband accompanied by he was their son. wife.

4. Juror Frank conversed with his Walton every separation more In was no instance, the claimed (wife, nonjuror husband, than a communication with a or family juror) relative to matters or the needs of son of the juror; presence was, in each of a bail- instance, physical separation iff, and there was no other jurors. very meaning placed

In our earlier decisions we narrow “separation.” supra, Morden, on the In v. word State agreed and the defendant had state that over a weekend the charge jurors might bailiffs, attend a church go Sunday service a theatre. afternoon, On eleven jurors, of the bailiffs, with one went to see a movie. The having 475) juror, (p. other

“ scruples against attending places . . . conscientious Sunday, por of amusement on remained outside within the porch building during period. ... of the theater tico juror “Affidavits of the and bailiff who remained outside produced during the theater were that, effect period separation, they had no conversation with ” one. separation purview We held that this was a within the of statute.

By questioning interpretation; we were 1918, that and in (1918), v. 475, 477, State Harris 99 Wash. 971, 169 Pac. we said, “ making eligible jury . The statute women ser- change necessitated, itself, vice of itself and was of a in the existing system relating separation juries. of In trials

protracted periods time, over considerable of the rules of society, propriety, decency require and common that mixed separate according juries be allowed to to sexes at stated during progress. its intervals may questioned, moreover, “It whether the courts have placed ‘separate’ a too narrow construction on the word not

49,8 as used in the statutes. The of object purpose keeping them them sequestered is, been, and has always keep with reference matters being given influenced them in ulterior is as well charge, by practices. purpose This when the are under accomplished singly jury kept charge they of sworn of the court as it is when officers under kept like officers in a body.” Later in- decisions further from the have deviated strict of the Morden terpretation case, and have permitted bailiffs, physical in the of or separation jurors custody under where could re- no possible prejudice circumstances State v. Hunter 262; sult. P. (1935), 143, (2d) 183 48 Wash. State v. Stratton 378, 172 20 P. 596. (1933), Wash. (2d)

While conversations, such as in this case at the occurred door on one on the open jury occasion dormitory street near the court house door as jurors going dinner, avoided, should be a they do not constitute separa- but, tion the jury, rather, “Communication with or by State v. Rose It was so 43 jurors.” categorized (1953), 553, (2d) 194, 262 P. where (2d) jury Wn. misconduct discussed under three categories: (a) Entry room by unauthorized with a document for a person juror; (b) Communications with or by jurors; (c) Separation jury.

But, giving benefit of the more rigid prima rules and the fol- presumption prejudice facie a lows communication between upon separation upon nonjuror, burden is on the state to juror show Rose, resulted. State v. supra; no actually prejudice v. Smith State (1953), (2d) 307, 109; Wn. 261 P. (2d) v. Amundsen State (1950), 37 Wn. (2d) 223 P. (2d) (2d) 21 A. L. R. Here, the state did sustain that burden and established conversation between a every juror and a nonjuror was bailiff, of a and that the subject matters of presence could not have been in the conversations any way prejudi- Under such circumstances, cial to the we will appellant. of the trial court in the order refusing grant disturb new Smith, v. State v. supra; Carroll trial. State (1922), 563; State v. White Pac. Wash. Wash. Pac. 390. 416, 194 Challenge. Deprivation Peremptory

VII. of a contrary Raymond his urges Kraatz, to Appellant actually Team- testimony hostile dire, on voir was peremptory appellant use a forced to The was sters Union. jury. challenge keep Kraatz off of duplicity juror’s prospective claimed Evidence of the first time brought for the trial court attention of the appellant’s contention It is the for a new trial. in the motion court juror’s known to true attitude been that had have during Kraatz, he would dire examination of the voir appellant thus been would have cause; been excused for challenge. peremptory saved purpose is to enable of the voir dire examination juror, prospective

parties of mind of the to learn the state juror prospective possible, if demonstrate, and to appellant challenge subject does for cause. challenge developed for a basis was contend Kraatz. examination of cause in the developed jury, and had it Kraatz on the

Had served his false answers to deceived had been question entirely questions different would dire, voir presented; situation, claimed but, were that the even something juror be established would have to bias Casey hearsay affidavits. v. Williams than more reliable (2d) (2d) (1955), 343; 287P. State v. 255, 47 Wn. Maxfield (2d) (2d) (1955), 887; Patterson, State v. 285P. 46 Wn. (1930), 989; supra; 158 Wash. 290 Pac. Dalton v. State (1909), 269; 100 Pac. State 52 Wash. v. Simmons State 56, Pac. Wash. v. Wilson appellant; was, did not deceive the Here, Kraatz challenges peremptory That, all, after is what fact, excused. challenges get purpose of such is to off of are for. The party suspects person knows or but whose bias a dire examination. If we on his voir assume can’t establish development be a new it would Kraatz, the bias defendant, who had law hold that used criminal field of challenges, peremptory entitled to a.new trial all of time before the motion for a new show, at some he eoüld if (excused argued, prospective jurors trial was that one of the by peremptory challenge) had an actual bias. authority holding,

Appellant presented has no for such a and is none. we satisfied there

VIII. There Was Insufficient Evidence to Convict. prosecution brought The statute under which Is as is follows:

“Every person deprive who, with intent to or defraud the owner thereof—"...

“(3) Having any property possession, custody his agent, . . . control, bailee, trustee, . . . . . . corporation, or officer . . . of association or appropriate . . . to secrete, shall withhold or the same his own use . . . ". . larceny.” guilty property

“Steals be such and shall RCW 9.54.010. appellant’s most,

It is the state’s case that, contention at receipt by showed him nineteen hundred dollars from of the car, therefor; and, the sale of the and a failure to account money appropriate deprive since the intent and the owner established, of it was not there was sufficient prove evidence to embezzlement. Campbell

A similar contention was made in v. State prosecution 99 Wash. 169 Pac. where the syllabus under the same statute. A that case states concisely: applicable and rule facts prosecution “. In a ..for the embezzlement of the mortgage proceeds of note delivered to the accused purpose deprive collection, for the intent to the owner property sufficiently established fact mortgage person a third accused sold note proceeds to his use.” converted own following amplifies quotation opinion from the syllabus 505): reasoning (pp. 504, summarized specific urged that no direct and evi- “It is next there was tending prove part appellant an intent dence to deprive property. Fuchs of her No instrument has Mrs. workings yet inner invented means of which the been may criminal in- revealed; mind hence of the human be majority capable of cases, direct tent, in is not the vast express positive proof. In of an declaration absence purpose thereof, a can established as criminal manifesta- external inference from action conduct—the necessary design. Since, embezzlement, effect tions of deprive wrongful the owner his is to conversion gives property, appropriation infer- act of rise the the perpetrator result of ence that intended the inevitable case, to defraud was evidenced his conduct. In this by the intent mortgage selling the act note and converting proceeds person and own to a third his Security Company, Campbell in- use or to the stead of of Colin use faithfully executing collecting trust by . mortgage accounting the therefor amount secured ” . . to Mrs. Fuchs. stronger appellant-defendant A case for the was made (1913), 78, 87, State v. Jakubowski 137 Pac. Wash. said,

where we “ case, the In our statement of we have detailed every appears evidence, salient feature of the it while negativing persuasively to this as a criminal court intention credibility appellant’s part, weight the on appellant its the of jury. and his witnesses were for the As have we by competent seen, there adduced the state evidence every tending prove charged. to element of the crime as appellant’s The trial judgment evidence. denied court motion arrest of grant upon conflicting refused to a new trial opinion case, whatever our own to In such as weight preponderance evidence, of we or cannot jury. of both the trial court and the To reverse the action province of It do so would to invade both. would be judgment conflicting jury for that to substitute our as to be question upon evidence, and our of fact discretion reposed the trial that statute in court. “ has announced that it will not ‘This court heretofore ground alleged character, this on the disturb verdicts of insufficiency support evidence, there where is evidence to may although convincing not be of the most verdict, jury opportunity and the trial court have the kind. Both the witnesses, the several to note their hear and manner to see apparent truthfulness, and are candor therefore as to credibility pass upon prepared their testi- better mony court with bare record of the than words is weight having spoken the evidence the witnesses. passed upon by jury, first been judge and next the trial denying the motion trial, for new we shall not say they wrong.’ Ripley, undertake to that State v. 72 Pac. Wash. 1036.” See, also, State v. Dudman Wash. 205 Pac. 848. (and jury

The court instructed the no error has been assigned instruction): you deprive “I instruct the intent defraud, grand larceny, which as one of the elements offense of charged proved by case, in the Indictment in this must be beyond competent evidence However, reasonable doubt. proved by positive

it need not the existence of such intent direct and evidence, but may be inferred from the acts parties surrounding and the facts and circumstances them.” Instruction No. unnecessary again

It is review the evidence case, in this weigh responsibility nor is it our it. There was no doubt mind of the trial nor court, ours, is their in deprive was entitled to infer the intent to the West- ern Conference of Teamsters of nineteen hundred dol- (which act) lars the acts includes failure appellant. early

The evidence shows as knew February, 1956,that the nineteen hundred dollars had been deposited year than a account; in his bank that more later paid it had not to the been over owner. The semblance explanation through of an came in the case, state’s the tes- timony by Devin, F. as to of William statements made the grand jury, appellant knowing i.e., before the that not belonged, given the car he had nineteen whom hundred Verschueren, Jr., in cash to Fred dollars with instructions jury proper apply obligated account. The it to the was not explanation. to believe that clearly prima appellant confronted The was with a facie presented suggest and the defense did no more than

case, might appellant possibilities might of what have done or by to do with the nineteen hundred have intended dollars, why way explanation paid it had of of been over to.its rightful owner. raising assignments the error of

There is no merit insufficiency the ver- evidence to sustain of issue dict. Attorney Prosecuting Deputy

IX. of Misconduct Jury. Argument attorney, deputy prosecuting made Two statements urged argument, are error. course rebuttal appellant com- The of which makes most bitter one 1332), plaint (p. is everything get point is we down to the where

“But now deadly responsibility. a tremendous You have serious. publicity. all of terrible It true. Counsel refers to eyes upon you probably right are entire world against presented that here and the evidence has been now this, question widespread. There is no defendant has been your proper verdict, that. You that is about should return going responsibility. are the that are to have to You ones yourselves your at the rest You the ones look lives. are your neighbors going and friends that to have to be with high say, my your up and and head T did what heart hold mind all'by at told me.’ You are not to influenced be Nothing sympathy prejudice. can at all consid- be by you except the evidence from this witness stand.” ered says purpose that that statement great publicity amount of adverse to remind the they against ought him, to take remind them public ap- desire into clamor its account pellant convicted; and, further, remind them that if they they guilty, returned verdict of not would be held public up disfavor ridicule. interpret deputy prose- not so the statement

We do cuting attorney. publicity Comment on the matter of emphasis appellant’s placed invited counsel argument 1266), (p. in such statements as it in his “ gossip and . . . the rumors and the frenzied, only by propaganda that have could created insane been ” insanity somebody Goebels. and, pub- amount

“. . tremendous unfavorable licity Mr. Beck, circulated about that has been almost to point public press of saturation of the and the radio newspapers, repeated and the repeated repeated; system.”

the Nazi portion argument Even in the objected deputy to, the prosecuting attorney jury, tells the “ . You are any sym- not to be influenced at all pathy prejudice. Nothing at all can be considered you except the evidence from this witness stand.” deputy prosecuting other attorney, statement of the concerning complaint placed made, is has to be context to be understood.

Appellant’s pains explain counsel had at been some jury why he did not call Fred Verschueren, Jr., as a (Verschueren, person witness. Jr. appel- was the to whom supposedly given lant the nineteen hundred dollars to turn Cadillac.) over to the owner of Commenting the 1952 explanation, deputy counsel’s prosecuting attorney (p. 1316), said protect

“He tells us that he wants to Mr. Verschueren, you Jr. Mr. Verschueren, Jr., will recall, testified before grand jury. testimony There was effect here. Mr. Beck grand jury and the testified before up ogres wasn't breathing made who were down the of four anybody. up neck It people just was made seventeen you, like seventeen jury citizens selected to sit on that people they and seventeen testimony heard the Mr. after Regal and Mr. Verschueren, Jr. returned an indictment and you trying today. that is what here question strategy, is, “Now in Mr. Burdell’s should put he take Mr. Beck and him on the stand and have him explain Verschueren, bring this which he didn’t do and could he Mr. explain Jr. to have'him this which he didn’t likely, do, he felt because most we can assume he felt way, really that, sunk, if I do I am so I what have to do try assuming things is to to talk the into from these bring little bits of evidence that I can in with witnesses of community.” (This some stature is taken from the ours.) of facts. Italics are statement Appellant complains portion. (As quoted of the italicized Regal changed appellant’s brief, Mr. to Mr. Beck in portion; of the italicized the next to the last line and we correct.) change present purposes, to be assume, will for argument portion urges Appellant italicized that the jury grand weight prestige into of throws against an answer context, as him. Read in scale calling Yerschueren, appellant’s explanation Fred for not response. proper have consis- We witness, it is a Jr. as attorney, tently prosecuting which of a held statements regarded preju- ordinarily improper, not will be would they to and are invited in answer dicial error where are argument Collins, v. counsel. State made defense (2d) (2d) supra; Taylor (1955), 213, P. v. 47 Wn. State (2d) (2d) 505, 275 P. 298; State v. Harold Wn. Wright, supra. supra; Luven, v. 895; State v. Van State argue, Appellant brief, under this division of his does not prose- his claim misconduct of counsel: other (i.e., argument that one cutor, an illustration used in people full of a court room who stole bracelet before trial), presumption if he of innocence went entitled to the destroyed any presumption innocence, and effect of the thereby presumption. denied him the benefit using agree. similar have been

We do not Prosecutors many years, never been illustrations it has before for but urged process. as a denial of due argues

Appellant have X, this in his division but we placed counsel. it with other claimed misconduct of X. and Refused: Instructions Given accepted,

Up point, substance, the head- have to this we given ings the divisions in his has heading Appellant’s X, however, is, in division brief. briefly reargues He effect, Denial Due Process. grand jury pro- already urged reference to errors with ceeding, effect of the the accumulative and asserts Having process. many denial due errors constitutes prejudicial IX, I to we error in divisions no found impressed effect. their cumulative heretofore matters not therefore, cover

will,We assigned urged. Appellant Nos. to instructions error Appellant argues only Nos. 3 and 16. as to 3,14, but assigned give requested errors instruc- to the failure 10, 14, tions Nos. and 38. given urged

It not have the trial court should merely emphasized the most instruction No. because it aspects already adequately favorable for the stated state — in instruction No. comprehensive

Instruction No. 2 statement prove all of the elements of the offense which state must before the could convict.

Instruction No. 3 is a definition of the crime of larceny by substantially embezzlement, in the words of 9.54.010(3); 9.54.090(6). the statute. RCW RCW Under the facts this it error to instruct case was not language (1955), 46 of the statute. in the State v. Sedam (2d) (2d) Bixby (1947), 27 725, 292; 284 P. State v. Wn. (2d) (2d) 144, 168, 177P. v. 689; Wn. State Verbon (2d) 140, 8 P. Wash. Appellant points out no error in instruction No. 16 on urges presumption doubt, innocence and reasonable but subject preferable, that his instruction No. 10 on that was argument deputy particularly prose- the view of (The presumption the of innocence. trial court cutor on way knowing given the no when instructions argument be.) deputy prosecutor’s would what proper The trial court’s instruction was statement longer preferable and and seems to us to the much law, argumentive proposed by appellant. more instruction certainly requested not It was error to refuse instruction principle adequately of law stated therein where given. Myers (1959), the instruction State v. covered (2d) (2d) P. cases 53 Wn. numerous therein cited. urged gave that, since trial court instruction No.

It is (the statutory grand larceny by definition of embezzle- ment) given appellant’s proposed have , instruction it should guilty the effect that defendant could 14 to not be No. proceeds [of a “definite intent to take the unless there was Cadillac] from the the sale of Western Conference of deprive money.” it of the Teamsters 2, and No. of intent in instruction element was stated 5, 7, emphasized re-emphasized Nos. in instructions and 9. jury adequately more than instructed refusing

necessity did err in trial court intent, give proposed appellant’s 14. State v. instruction No. Myers, supra. stating

Appellant’s proposed No. after instruction presumption said, innocence, any person especially kept mind must when

“This publicity in non- has judicial nation-wide received unfavorable tendency proceedings to be one- which have party opportunity to make sided involved has no because any adequate defense.” says, In brief, grant “Finally, appellant’s in- the failure of the court to certainly in view of error

struction No. 38 the . was the court told fact no other instruction of disregard unprecedented publicity.” argument beyond authority cited, No is no is there quoted refer One could not statement the brief. per- practically instruction, as a slanted because

pendicular. There was evidence case which the no unprecedented publicity applied. The matter of instruction by appellant’s injected was, seen, as we have into case argument jury. properly The trial court counsel in (1946), give State v. Hart refused to such instruction. (2d) (2d) 944; 26 Wn. P. State v. Powell 253 Pac. Wash. length (2,400 pages), and the number The of the record many novelty appeal, raised and of of the issues has unduly delayed this nineteen the determination of hundred grand-larceny-by-embezzlement dollar case. ample and the verdict no

We find evidence sustain appealed prejudicial judgment error the record. be affirmed. should JJ., J.,C. Mallery, Ott, Weaver, concur. my opinion, majority, (dissenting) J.

Donworth, —In upholding appellant’s indictment, reached a has result directly contrary .policy to the settled this of state by legislature as determined respect our with to the im- paneling grand juries. agree Therefore, I cannot majority holding appellant entitled, was not under grand jury the laws composed state, to have a im- partial unprejudiced jurors. considering appellant’s

In quash motion to the indict- ment, appellant we must bear in mind that was indicted by grand jury impaneled Washington in the state of by a Federal aor aof state whose majority statutes differ from However, ours. superior holds that inquire court need not whether the prospective grand jurors any prejudice against entertain person charge, whose conduct court, in its directs investigate, them to holding upon bases its decisions grand juries the Federal courts whose need not be com- posed impartial unprejudiced jurors because no prescribes. statute or rule of court so fully very problem To presented understand the serious assignments quoted the three of error below, it is neces- sary to consider certain material facts record, shown majority which are opinion, presum- not referred to in the ably everything happened prior because of its view to the trial of the case properly is immaterial. In order to legal question presented, consider the which is I consider necessary state coming these facts in some detail before applicable to a discussion of the statutes and decisions of this court. assignments of error with which we are first con-

cerned are as follows: appellant’s rights “25. The court denied ato fair and im- partial grand jury. prejudicing grand jury against “26. The court erred in charge. its failing “28. The court erred in to set aside the indictment prosecutor grand jury.” for misconduct before the passing upon assignments, In the merits of these we should during unique have in mind the situation which existed convening immediately preceding of months three grand jury. herein, grand jury, the indictment returned

The which prior May months on 1957. Several was convened Improper Activi- thereto, the Senate Committee Select (commonly Labor-Management referred in the Field ties Committee) Investigating com- to as the Senate Rackets investigation their of certain unions menced labor ju- say, hearings aof these were not officers. Needless applic- Ordinary were not dicial nature. rules of evidence subject able, nor were the to cross-examination. witnesses object hearing of the to obtain stated committee was enacting legisla- Congress aid information which would bearing upon labor-management tion relations. hearings public and were of the

Most were conducted During widely reported by media. the various news period prior impan- approximately three months grand jury, appellant principal sub- elment of was ject charges in the of misconduct made course hearings. appellant then, since childhood Because thirty preceding Seattle, been, had years resident of and for the reputation,2 leader of national been labor highly point area was the focal for the dissemination derogatory publicity concerning appellant which resulted hearings. press from the committee The local featured large, heavy type, front-page headlines in which the more excerpts day’s testimony from that other sensational proceedings flamboyantly displayed. committee radio and television carried the same local stations reported material, and in media several instances both Washington, hearings “live” D. C.3 1952, appellant many years December, president 2Prior to Teamsters, covered of the Western Conference eleven western December, 1952, appellant office in Seattle. In states. He maintained his president (a became of the International Brotherhood Teamsters having members), one half million which main labor union one and principal Washington, Thereafter, office in D. C. tained its an office Seattle and held official title of continued maintain president of the Western Conference. emeritus appeared a local television station 3An advertisement stating report proceedings newspaper it would Senate again following day, appel- 26, 1957, On March on the by accompanied appeared lant, counsel, as a witness before Upon appellant the committee. counsel, the advice of in- privilege formed the committee that he would assert the against guaranteed by self-incrimination him the Fifth Amendment to the United Constitution States because of currently being investigated pos- the fact that he was for posed ques- sible violations of Federal law. committee appellant (on tions to which refused to ad- answer counsel) ground might vice of on the that an tend answer fifty to incriminate him. He did aso total of hundred one during days interrogation by times the two of his the com- mittee. May appellant by 2, 1957,

On was indicted in Tacoma alleged Federal income-tax evasion. May appeared page 3, 1957,

On there on the first Post-Intelligencer Seattle a statement to the effect that the prosecuting attorney special prose- had decided to name conducting grand jury proceed- cutors to assist him in ings.- following This article contained the statement: investigate possible “The is to misuse Team president sters Union funds international Dave Beck ..." May appellant testify 8, 1957,

On was recalled to before again subjected Committee, Senate where he was to a lengthy interrogation, during appellant again invoked upon approxi- the Fifth Amendment, counsel, the advice of mately sixty times.

During proceedings, the course of these the committee orally counsel, chairman, members, its and some of its stated expressed opinions regarding certain conclusions and appellant. comments, conduct of These which were ex- tremely derogatory appellant, widely were circulated throughout particu- States, all news media the United larly appellant area. In comments, the Seattle these regarding exclusively Wednesday, on Committee “live” going March advertisement showed the station was approximately day’s programming devote reproductions hours of that to both 9-3/4 hearings of the Senate and news comments thereon. and it asserted that he was thief, characterized as a illegal respect guilty his of fraud other conduct management union as its the affairs of the teamsters’ principal states, later officer the eleven western position president. as its international opinions (particularly

These those ex- conclusions and pressed McClellan, Senator the chairman of com- mittee) displayed by newspapers the front local prominent following page in are a headlines. The few which were referred to such headlines comments appeared newspapers: Seattle Kept Going To Cash Beck After He Became “Teamsters’ Times, 23, March Says Seattle President, Union Prober.” 1957. $85,000 May Says Theft, “Beck’s of Be McClellan.” Use Times, 27, Seattle March 1957. Eye’ Says “Beck Labor, ‘Black Sen. McNam- Gives Times, 27,

ara.” Seattle March 1957. Lid “Senate Probe On Beck Beer Business —Use Lifts Post-Intelligencer, May Money Seattle of Union Related.” 9, 1957. relating proceedings portions Substantial committee of the charges reproduced to these in the course news also local and stations. broadcasts on radio television intensity, derogatory and nature of the amount, by during publicity appellant period is this with- received Washington. precedent out the A news- state of Seattle reporting paper carried a item the switchboard news of a local had the committee radio station that broadcast preceding day jammed proceedings calls, on was response and that characterized the the officialsof the station “astounding,” part public the broadcast on the as greater resulting response and that than that such was by aired them. The serious accusa- other ever broadcast in the committee tions made United States senators laymen being hearings generally regarded by official (which answer)4, charges appellant had refused to and thus guaranteed exercising right 4Appellant, doing, was him the in so See v. United 341 U. S. United States Constitution. Hoffman States, 1118, 479, 71 S. Ct. 814. 95 L. Ed. impression general among public was created appellant guilty had found a crime. The natural been eyes average publicity effect of that, this thoroughly appellant citizen, the character dis- been May credited area on Seattle or before undisputed In view of the circumstances shown facts case, stated in the affidavits in I think it would very be unrealistic that a substantial to believe number consciously community adopted, the citizens of the had not unconsciously, prejudice an attitude of bias toward appellant grand jury at ever the time was convened. If stringent required there was a most case which observ- safeguard every protect ance of known the law to against prejudice, citizen bias this was it. July (who 30, 1957,

On had been indicted on July 12th) publish inspect filed a motion to allow him to transcript grand voir dire and both jury proceedings. Appellant filed an amended motion September supported by affidavit, counsel’s stating on information and belief that prejudiced September 20, 1957, On the trial biased. granting appellant right court entered publish order inspect open proceedings court (i.e. charge). the dire and the voir court’s appellant along 18, 1957, filed, On October other pertinent pretrial hereto, motions motion aside to set accompanied and dismiss the indictment. This motion was compila- affidavit, his counsel’s attached to which was a photostatic copies magazine newspaper and tion of arti- (total showing pages) nature cles the and extent of the publicity concerning appellant. day, adverse On the same challenge grand jury upon filed also to the the grounds

“ impaneled grand jury court said determination as to whether state of made no mind existed juror part such as would render him the unable to on prejudice.” impartially and without act argued superior All the of these motions before court 1957, 7, 4, 1957, on November court on November denying entered order to set both the motion aside challenge grand jury, dismiss the indictment and the directing testimony Verschueren, Jr., but of Fred sealed, transcribed, before retained subject file, the case in the event of a disclosure subsequent appeal. application conviction The state’s entry prohibition prevent to this for a court writ of this order was denied. considering assignments

In three error referred to (1) impanelment above, I shall of the discuss given jury, (2) charge grand jury, (3) alleged prosecuting misconduct officers the exami- grand jury. nation of a witness before the Impanelment days prospective five Within before members of grand jury reported newspapers court, the Seattle published articles with these headlines: Apparently $300,000 Says “Beck Stole Union, From following

Probe Aide.” Underneath this headline is the statement:

“Labor at a Probe Glance: Kennedy,

“Robert counsel for the Senate Rackets —In- vestigating to appear Committee, said that $300,000 would $400,000 which Dave Beck ‘borrowed’ from the Team- actually (See below.)” sters was ‘stolen.’ Times, Seattle May 15, 1957. Says in 52 Instances, “Beck Misused Union Position (There body then follows in the article Prober.” alleged by appellant detailed of 52 list instances of misuse position.) May Times, 16, union Seattle 1957. Charges $300,000.” Se- “Senate Document Beck ‘Took’ Intelligencer, May attle Post 1957. ” ‘Rascality.’ Seattle “McClellan Beck Blasts For Intelligencer, May Post 1957. impaneled May After explaining general qualifications grand jurors, prospective court examined each as member to his her or particular qualifications grand juror. ques- to act as These

tions-related, :the-.juror’soccupation, he ever whether had (or any been a affiliate member the. teamsters’ union thereof) any anor in union. He further asked officer any acquainted if he the teamsters’ were officer of juror appel- prospective if union. One was asked knew he. replied negative. question final lant and. he in the prospective juror which the court asked each was: anything sitting jury grand “Is there about you might at embarrass all?” jurors5 prospective examined The court excused five persons five more in the same manner. then The seventeen jury constituting grand accepted in the box were jury and the court to them. administered the oath jurors ac-

It is to noted that none of the who alleged cepted anything was asked if he had read about activities of the in the officers teamsters’ union Seattle nationally magazines, newspapers particu- inor circulated larly relating proceedings before those articles any juror asked if he had Senate Committee. Neither was any proceedings part had heard of these on the radio or any them “live” on television. Nor there interro- seen gation any jurors them had ascertain whether any concerning participated heard or discussions had general jurors question matters. The as to whether these any way sitting on this be embarrassed would my opinion, was, not sufficient to disclose bias (conscious unconscious) part prejudice or on the jurors. publicity unprecedented view the been

In hearings given the three to the Senate Committee within preceding impanelment grand jury, I months interrogated jurors should have been think jurors prospective court excused volunteered 5Two of the five reading newspaper seeing prejudiced by they articles and had been appellant if knew' and he Another was asked broadcasts. television replied negative. instance of court’s re This was although name, ferring the court’s later reference to the undoubtedly president union was understood of the teamsters’ appellant. jurors to mean against prejudice possible the officers existence of bias of the teamsters’ union. bearing subject

The on this will discussed authorities be charge grand jury. I after review the court’s Charge The Court’s background explained court func- historical grand jury,

tions of the and commented on the fact that it infrequently people, had been used in this state that most so lawyers, procedure even were unfamiliar with and under- its lying purposes. The court then outlined the manner in grand jury perform which the was to its functions. calling grand jury

The court stated the reasons for as follows: purpose come “We now of this and the judges thought

reasons which the of this court sufficient to justify expense county, and the inconvenience to by you, and sacrifice which this will session require. unnecessary testimony “It seems to review recent Investigating except say before a Senate Committee indicating that disclosures have made been that officers of through have, device, Teamsters Union trick and em- bezzled or stolen hundreds of thousands dollars of money funds of that which had come the union union— alleged from the dues of its members. It has been many through money transactions, of these which the siphoned treasury, King out of the union occurred County. punished crimes, un- committed, Such if cannot be der Federal law, or under other than that of the law Washington, prosecution place State of must take County. King necessary charges criminal can brought county upon in this indictment attorney. prosecuting filed information president publicly

“The of the Teamsters Union has de- money clared that the he received from union was a presents question repaid. fact, loan which he has This you the truth which is ascertain. for may many happened “You find the transactions years ago; question of more than three this would raise the ordinarily prosecu- limitations, the statute of bars larceny years. instances, There are tion after three some question period This however, is extended. where you guided by prose- of law cutors should be advice of investigation questions. Your on this similar may conceivably adoption of better standards result of conduct for union officials. investiga- suggested by inquiries “Some other the Senate relationship tion the officers of the Team- between alleged broker; and a certain insurance sters Union conspiracy officials men and Teamster between business fixing prices; by Teamster and the influence wielded public through campaign officials. officers contributions to may completely investigate “To all these items be be- yond tors and their energy yourselves, prosecu- and endurance of

investigating The staff. financial burden beyond investigation may complete the resources such be you County. urge you King I all that can within do falsity practical limitations to ascertain truth or charges.” these designating grand jury, the

After the foreman of the court said: grand jury, that is all I have to “Now, members of the you say way charge. you I all of a formal think your right selected from the realize that names have been registra-

jury tion books. You have picked is from the voters’ list which turn perform and a most serious task to performed, per- you being and to be is I know realize it among picked grand jury at random from formed, community, keep hope and thus we in this citizens responsibility, people. It is tremendous law close you your I work.” and wish well attorney, prosecuting one introduced court then attorneys regular special prosecuting deputy, two reporter, terminated court and official charge.6 its charge admonition, de- contained this “Your

While you dis- are forbidden law to are secret liberations any question discussion, even the before vote, close the jurors refraining warning given you,” about was no assignment 6Appellant, No. asserts that unauthorized of error grand jury, appeared contends that the indict persons before I In reason. view the conclusion for that ment should dismissed necessary assignments, I do not find it discuss other reached on have 27. No. reading magazine relating newspaper or articles to officers they serving union teamsters’ while any given grand jurors jurors; nor was there admonition listening pertain- programs to radio or television about ing to the conduct these officers. day

On the afternoon appeared sworn, selected two articles in the Seattle concerning appellant. Times The headlines read: From A.F.L.-C.I.O. Posts — Teamster “Beck .Ousted ” Guilty ‘Violating Times, Seattle Found Trust.’ Chief May 20, 1957. say (“ ‘May Infringing Rights.” “Solon I Denies Beck’s that the committee has not Mr. crime, convicted Beck of although my many it is belief that he has committed crimi- ”) May 20, nal offenses.’ Times, Seattle following morning, Intelligencer the Seattle Post carried this headline: Lays ‘Many to Beck.” Se- “McClellan Criminal’ Acts Intelligencer, May

attle Post 21, 1957. (May 21,1957) July Between that date 12,1957,when nationally weekly indicted, two circulated magazines published articles entitled: Against U. S. “The Case Dave as Beck It.” Senators See Report, May

News &World 24, 1957. City “A Ashamed — Dave Beck is on Seattle’s Con- May science.” Time, 27, 1957. arguments relating I shall now discuss the of counsel to assignments of error No. 25 and No. 26.

The motion to set aside and dismiss the indictment was upon provides 10.40.070, based an RCW indict- appears: ment must aside be set when it “ (4) grand jury That selected, drawn, were not sum- impaneled, by prescribed

moned, or sworn as law.” appellant’s It is contention that was not impaneled prescribed that there no inter- as law in rogation by designed the trial court to determine enable to any juror possessed or not a state whether of mind which impartially would render him unable to act and without 518

prejudice. added the further contention To this is charge prejudicial to trial court’s to appellant. relating

My portion to record examination of the of the. appellant’s me that contentions are these matters convinces taken. well relating grand clearly juries of this state to statutes legislative adopt principle intent to

demonstrate grand impartial unprejudiced. must be may prosecution complainant shall “No who institute grand competent present of a at deliberations be be jury, finding of an indictment.” RCW or vote for 10.28.140. may “Challenges grand jurors made individual qualification person to sit such reason such juror; of want opinion court, a of mind the render him unable state when, act juror, as would exists in such impartially prejudice.” 10.28.030. RCW without Territory, Washington Terr. this 1 In Wash. Watts v. grand jury proceed- challenge overruling court, in ings, claim the de- pointed no that there been out preju- grand jurors were biased fendant that diced. Superior Murphy Court, 82 Wash.

In ex rel. v. State judge right (1914), upheld the trial we Pac. 32 jurors prospective and stated: certain to excuse legislature preserve policy “That it was unprejudiced jury and right an unbiased and to have jury, suspicion the manner of attach to that no should ” questioned. cases, all cannot be its selection in mine.) (Italics (2d) 464, P. Guthrie, v. Wash.

In State quash indictment, denying a motion court, quotation supra, Murphy and the above case, cited approval the statute now and discussed therefrom with above) (quoted as follows: 10.28.030 codified as RCW challenges may relate to be said this section “While deny- persons, construed as by it not to be is interested made right, upon motion, to excuse own ing its the court the deny incompetent. disqualified To or juror deemed to be right of the the this would out with of harmony policy court law, which the with the of in- charges responsibility that are se- jurors and suring impartial grand qualified, cured.” (Italics mine.)

. Thus, our of this be based consideration case should upon law, the that a matter was entitled of premise appellant, to an and impartial unprejudiced grand jury. Although state in this case not take does issue with premise,7 holds that is not concerned majority any- with that takes his trial thing before place begins.

In my opinion, we should view the circumstances of this case I realistically and in a manner. As read the reasonable record, consideration facts of this case thus of viewed consisting comprehensive 7The state has filed a brief of one hundred fifty pages containing following appellant’s argument answer regarding right unprejudiced grand impartial jury: his and “Appellant asserts the denial to set of his motion aside the in- dictment constituted error under constitution our statutes and and the (App. 35). constitution the United States Br. Except citing “Appellant cites . [citations omitted]. well-recognized, grand impartial rule that should be and un- furies prejudiced (App. 37), applicable.” Br. the cases are not otherwise (Italics mine.) page brief, At 48 of the it is stated: state’s patent “It the indictment herein endorsed ‘a true bill’ signed by presented and foreman of (Tr. 1). Thus, statute, only grounds and marked ‘filed’ under defendant could raise on a motion to set aside the indictment were those (3) (4) enumerated subsections of RCW 10.47.070 RCW [sic grounds It is submitted that none of the other enumerated 10.40.070]. pro- motion defendant’s to set aside and the indictment dismiss were by vided for our statutes. grand jurors selected, drawn, summoned, impaneled “The prescribed by sworn as law. Defendant motions and affidavits his allegation relating summoning, selection, drawing, made no except assertion that impanelment swearing steps grand jury any person the court took no ‘to exclude or from persons hostility bias, prejudice who entertained an attitude knowledge’ purported toward the reason out- defendants facts opinion lined in his ‘or or reason defendant affidavit of belief gathered widespread publicity respect circulation steps thereto’ and ‘no ignore were taken to instruct or direct the disregard reports disregard any or circulated . . or to opinion they might attitude have as a result formed thereof.’ 2140).” (St.

520 all, of the some, can lead the if not conclusion already opin- grand jurors certain had formed unfavorable alleged regarding appellant’s ions conduct. contrary otherwise, to all human

To do would seem to be experience. prospective Yet, no the at time were of opinion, jurors they and, if so, had an asked if formed prevent participating fact them from whether such would fairly impartial investigation later in of the matters re- charge. in ferred to the court’s given

Furthermore, ever them as to no instruction was legal newspaper significance the to the attributed be the Amendment statements that had invoked Fifth fifty declining privilege times in to an some two hundred questions Yet, the Committee. such fact swer before Senate subject the much comment in the various news media. was of 391, States, v. United 353 U. S. 1 As stated Grunewald (2d) (2d) 1344, A. L. R. where L. Ed. 77 Ct. S. discussing right this court, the to invoke constitu the quoted privilege, Griswold, The Fifth Amend tional Today: ment “ many, advised, even those who should be better ‘Too They wrongdoers. privilege too this shelter view guilty

readily it are either that those invoke assume who ” claiming privilege.’ perjury crime or commit interrogate jurors the court for the failure of against possible prejudice existence bias and officers prejudicial of the union error. teamsters’ constituted magnified The effect of this error further jurors charge grand jury. court’s in- solely upon their the evidence structed to base deliberations during investigation. presented course of their to them charge contrary, seemed to indicate that On the court’s disclosures of the Senate Committee were so-called instructing worthy consideration. Instead their “testimony” wholly disregard jurors they must be- brought expressly Committee, fore the Senate the court attention, and it to their then stated substance appellant’s Indeed, committee’s conclusions as to conduct. grand language implied that the court felt that the used jurors already must aware these matters because widespread publicity hearings. accorded the Senate president

The court stated that the of the teamsters’ union publicly stated that sums received him from the loan, union were a and that it the function investigate matter and determine truth regard. stated State, As in Fuller v. Miss. So. 749: “ every . . man, . not, whether accused or is entitled presumption legally

to the This of innocence until convicted. presumption binding jury, upon petit is the and stands as a witness in favor of the defendant when on trial. It guards grand jury investigations him the until their before produced proof have believed them which overthrows protects judge charge it. It him the circuit in his to high from grand jury, the that word forbids apt, dignity importance, station, so account of on its to slightest prejudice utterance, influence its should the grand jury upon when enters the consideration viola- of (Italics mine.) tions the law." of assignment necessary The last which it is to notice is alleged 28, No. which relates to misconduct prosecuting grand jury during officers before the the ex- witness, Verschueren, amination of Fred Jr., who was bookkeeper for the Joint Council of Teamsters No. testimony of this before the witness eighty pages six

covers one hundred record and is long opinion. paraphrase say in too to Suffice it to subpoenaed that he was testified 20, first June regarding handling certain funds. He was excused completing testimony day. his after on that voluntarily July appeared he On and asked to testimony. in his correct some errors He said he did so at suggestion testimony his In own counsel. his on this having custody in his he told about envelopes occasion containing two currency holding he appellant. for go temporarily to excused back to He was bring his office and envelopes these room. He did so, envelope of each contents and the counted. There was envelope other. Included $3,500 in $3,100 one envelope in one bills. two $500 vague on some rather Mr. Verschueren’s recollection was change regarding explanations in his details, and his testimony appearance irked the three 20th since June cross-examining prosecuting him. officers took who turns ways: Each them various threatened witness (penalty (1) perjury jour prosecution times fifteen for With you go years penitentiary to no reason for —“there else”); somebody (2) penitentiary invited him (3) the en- test; take a detector threatened to send lie Investigation velopes find out if the Federal Bureau of having lying and unsealed sealed witness were about badgering when them. instance this witness was Another prosecuting the witness one of the officers said to (the interrogator) get bill knew one could $500 request, except special at a from teller’s window bank going . and that to assume . that is correct.” “we point, prosecutor At another the witness: stated nobody [being room “. say.” you prosecuting officers] believes one word

four appellant’s The affidavit of counsel states on information grand talking there such that loud belief jury hall room that it was audible in the outside. Jury prepared Handbook, under the

The State Grand auspices of of the Section Administration the of Judicial' Bar Association states as follows re- American interrogation grand juries garding of witnesses before jurors: by prosecuting officers or impartial objective, questioning should be

“All with- any indicating viewpoint part questioner.” on the of the out case, questioning of the witness in this Verschueren objective. hardly as described Neither was the be could viewpoint interrogator attempted concealed when of only possible way get testify” to the as “to bill $500 stated, effect, further no member of aat bank grand jury a word the witness said. believed may there no assertion above In order

523 prosecuting described on the offi- comments conduct pertinent portions accurate, cers of Mr. Ver- Appendix schueren’s forth A examination are set below. prosecuting respect The functions of a officer to the with grand jury giving legal (upon are limited to the advice request) and the examination of Our statute witnesses. jurisdictions scope and the decisions from other indicate the of these functions and are discussed below. provides: 10.28.070

RCW prosecuting attorney “The shall attend on the examining purpose giving for the witnesses them they may such advice as ask.” phrase “examining I do not think that of witnesses” arguments, upon threats, includes and comments the evi- dence such made as were in this In case. United States v. speaking Wells, 313, court, 163 Fed. about the duties prosecutor respect grand jury, to the stated: “ provision prosecuting attorney may . . . appear purpose at all times before for the giving any information or advice relative to matter cognizable by them, was meant to him confine to those giving concerning procedure traditional duties of advice expressly like, witnesses, to the examination of provided, expression opinions and not or the mak- ” ing arguments. prosecutor proper isNor for the to state facts which relevancy guilt person have no or innocence (Attorney inquiry v. Pelletier, under General 240Mass. (1922)); pass credibility E. 134 N. of wit- (People (2d) Benin, v. nesses N.Y.S. 186 Misc. (1946)); way or in influence or direct findings. State, v. in its 188 Ind. Williams (1919). N.E. 209 prosecutor responsibility in trial of a in (2d) Case, State v. matter is discussed 49

criminal Wn. (1956), quoted (2d) People 500 P. where we from Fielding, (1899) Y. 53 N. E. 497 158 N. v. these words:

“ might ‘Language permitted which to counsel in sum- propriety

ming up public prosecutor, a a action be used civil cannot represent- quasi-judicial officer, iswho a ing People presumed impartially state, act of and lays impar- only justice. of If he aside the the interest tiality a action to become that should characterize his official prisoner partisan, vituperation and

heated and appeals procure all prejudice at a conviction seeks to public represent interest, properly hazards, he ceases to through victim, asks conviction which demands no the and no ” sympathy passion, or resentment.’ aid (2d) (2d) 888, P. See, also, Reeder, State v. 46 Wn. and cited cases therein. duty prosecutor him- Thus, it is to conduct if quasi-judicial trial self a a criminal as officer in contested judge, presence essential it of a how much more grand jury pro- do so in a secret and uncontested presence ceeding laymen seventeen without before judge. prosecuting case can The conduct of the officers hardly quasi-judicial. as Rather it is best be characterized following quotation United States described supra, grand jury proceeding: Wells, v. which involved “ gathered zeal, . . a as . commendable force exaggerated progressed, finally expanded parti- into wholly semijudicial sanship duties of inconsistent with the entirely unnecessary public prosecutor, in the execu- ” powers reposed, tion remotely resem- case I have found which even pertains bar, at in so as it to misconduct bles the one far grand jury, prosecuting before the is Common- officers Cy. Rep. de- Bane, 39 Pa. Dist. & 664. There the wealth v. were the witnesses before the fendants themselves quashed jury, the indictment because the the court investigation coun- was conducted Commonwealth’s prejudicial testimony manner, in sel in they openly derided were denounced defendants repentance hypocrites liars and exhorted to as highly manner, in a emotional dramatic and confession stating: the court duty of the Commonwealth’s counsel, it is the

“While grand privilege, upon jury wéll as his to attend with they upon pass, matters are aid in examina- to to give general witnesses, tion of and to as such instructions they may require, any attempt part their on his to influence grossly give adduced is action or to effect to the evidence improper impertinent: ...” case, Bane

The difference the misconduct in the between supra, degree only. and that before us here is one appearance Verschueren, Jr., witness Fred on his second grand jury, giving testimony before the favorable appellant. credibility grand jury pass His for the upon any prosecuting without comment from the officers. testimony It could well that his be was disbelieved grand jury solely prosecut- as a result of the conduct of the ing Appendix officers as shown A. conduct,

Whether such itself, would be suf- necessary ficient to invalidate the indictment not, or it is not only to determine. However, it could serve to further prejudice grand jury, conjunction and, when taken in previously deprived ap- the other errors discussed, pellant right unprejudiced impartial grand of the to an contemplated the law of this state. part impaneling

The errors on the of the court in charging grand jury large part, due, were no doubt infrequent grand juries occasions when have been called in this state. The court itself commented on this fact charge grand jury in its people, when it said that most lawyers, generally even unfamiliar with procedure.8 appellant, However, the fact remains that be guilty impartial innocent, or was entitled a fair and investigation conduct in accordance with the forms against law before valid indictment could be found opinion right am him. I of the that this was denied him. supreme As the court of the United said, States in United States v. 341 U. Hoffman, S. 95 L. Ed. 1118, 71 S. Ct. 814: 8During iorty years preceding calling jury, of this county. King

there had been seven sessions signal litigation emphasizes “The increase in such continuing necessity prosecutors and. alike courts repress’ investigatory power ‘alert to abuses in- bearing grand juries ‘may proceed,

voked, in mind that while upon knowledge upon either their own the examination inquire cogniz- of witnesses, a crime whether able committed,’ Henkel, court has Hale v. been (1906), yet U. S. ‘the most valuable function only [has been] into not examine prose- of crimes, commission but to stand between cutor and the at 59. tak- accused,’ id. Enforcement officials ing grand-jury proceedings the initiative and courts charged superintendence their should sensitive .be making the considerations for wise exercise of such investi- gatory may power, where constitutional issues be involved, assistance of other also where noncoercive but unnecessary agencies may federal render it invoke compulsive process grand jury.” of the

Conclusion My herein and the de- conclusion, the record based on law to, is that two rules of cisions referred hereinabove applicable to case: the instant presumption inno- appellant of 1. is entitled That stages impaneling proceeding of of cence at all this jury. grand petit jury of the trial before to the close any proceedings right him denied because This cannot be the Senate Committee. before impartial grand unprejudiced of an The selection appellant jury or be indicted whether should to determine part just the law of this state much an not is as essential impartial jury petit unprejudiced as selection guilty try impaneled or not him render a verdict charged guilty in the indictment. offense of the argue the state could have It is answer here to no appellant against proceed information. elected to procedure Thus, was used. that the fact remains comply mandatory statutes, state with those it (and territory) state since in effect in this which have been right impartial granting to an 1854, grand jury. unprejudiced 44, Devlin, 258 Pac. 826 Wash. court, in State v.

This applies That mutatis fair trial. definition defined investigation. case, In the cited mutandis to we said: impartial question “The is that a fair and involved Pryor,

trial. In said: v. 121Pac. court State 67 Wash. “ ‘A fair trial consists not alone in an of the observation recognition just applica- law, naked and a forms of but principles.’ tion of its right

“It land, is the of the direct law vouchsafed people partakes written It of the law state. play pervades character fair all the activities of people, sports, business, the American in their whether society, govern- religion or the law. In the maintenance of lawyers ment to the extent it is the courts and committed to just law, in the administration of criminal it is as essen- tial that that he a fair one accused of crime shall have trial as it is guilty at all, tried whether he has his not, be picture rogue’s gallery Pryor In or not. case just to, remembered, referred was said it must be People, stated in Hurd v. 25 Mich. ‘that unfair means may doing justice happen prisoner to result in particular yet, justice unjust the dangerous case, so attained ” community.’ to whole public by Despite indignation widespread created publicity resulting hearings, appellant from the senate unprejudiced impartial grand jury entitled to the same investigation every guarantees as the this law of state to citi- prominent zen whether he For one hundred be obscure. years, duty prescribed by five has courts, it been the of our as legislatures, both the to a state see that state territorial.and any prospective grand juror of mind not does exist in impartially would him render to act unable and without prejudice. my statutory opinion, duty per- In this was not grand jury case, formed in and hence the this was not im- paneled by prescribed law. concluding briefly dissent,

Before I this wish to notice majority opinion. certain statements contained The only majority position statutory pro- that takes grand jurors required in this are visions that state to be impartial unprejudiced are found in RCW 10.28.010and provisions apply only 10.28.030,

RCW and that these persons already custody in for an or held to answer of- majority opinion fense. then states: challenge by ‘person “There a a reason for such in custody appellant offense,’ or held to an answer for but person.” (Italics mine.) was not such a only granted legislature It me seems to that the reason the person custody an or held to answer for offense right impartial unprejudiced investigated an be grand jury, grand jury’s had is that attention been upon him the commencement its investi- focused gation. precisely appellant That is here. the situation of prospec- There could not be the minds of the doubt jurors that had convened to in- tive this been vestigate appellant. above, As mentioned not did the newspapers than announce, less three weeks before the investigated by impanelment, that was to be charge, grand jury, but, court, also, the trial in its instructed president union had the teamsters’ publicly sums received him from union stated stolen) (which stated the Senate Committee were repaid, presented and that been this issue loans which question for of fact resolve. said, can under facts

I not understand how do entitling person the reason record, shown investigated custody an offense to be or held answer unprejudiced grand jury, impartial does appellant. equally It is apply axiomatic all men well to rights equal and are entitled to the same the law before or similar circumstances. the same under following opinion majority continues with the state- ment: “ grand jury investiga- a modern starts its . . . When suggest process to each it ridiculous as new seems tive scrutiny proceedings stop personality must comes under any whether member determined can be

until it prejudiced against grand jury grand juror him; and, if a or is biased investigation prejudiced, is so or is biased ” end. at an case, and of this duty apply the facts to the law Our is to appellant. application to above-quoted has no statement under the had come personality who new He was not some investiga- during scrutiny grand jury of its the course charge, that the clear, in its it court made Rather, tion. grand jury convening in- was to primary purpose teamsters’ union. vestigate as an officer his activities person court, the trial Appellant whose conduct was a investigate. grand jury charge, specifically directed the its showing majority here that there is no further states The My the face of prejudice. if, is that answer or bias hearings regarding publicity Committee Senate all the realistically anyone could believe that above, described against showing prejudice appel- there was no bias grand jury, lant, impanelment of the then at the time of the showing. anyone impossible make such a ever for it is grand jurors complaint appellant’s is that the But, interrogated the trial court to determine if never interroga- prejudice In the of such existed. absence bias necessarily rely appellant must on the facts stated tion, interrogation indicating would have dis- what such prejudice. here, Under the evidence closed as to bias or wholly presume unrealistic to would be unprejudiced. unbiased jury majority grand concludes its discussion

proceedings the statement that even if there were irregularities present quash- sufficient case to warrant ing prejudiced, indictment, could not be since statutory right there no constitutional or to a is state. in this statutory right there is a constitutional or

Whether or my opinion, totally grand is, in this state im- controlling here What is fact that the material. state against appellant by proceed indictment rather elected to having Therefore, elected, so than information. the state comply relating with the statutes bound jury procedure. opinion chiefly majority relies on decisions rendered grand juries composed whose need courts not be Federal impartial unprejudiced jurors, and no statute because prescribes qualification.

or ride of court Whether system legislature Federal or that ordained of this preferable, Any state is is not for this court to declare. government comply applicable all branches must with statutory requirements perform- constitutional and in the grand jury. ance of their functions. This includes the Until legislature repeals statutory quoted amends or law, emphasized applied equal above, it must be effect every person investigation by whose conduct is under grand jury pursuant charge to the court’s to it. my opinion the reasons herein,

For stated it is superior denying appellant’s order of the court motion to set aside and dismiss the indictment should be reversed grant remanded the cause with directions to the motion. JJ., concur with Don-

Finley, Rosellini, and Hunter, J. worth,

Appendix (to A dissenting opinion) Excerpts from examination Verschueren, of Fred Jr., prosecuting jury July 10, officers before the (All portions are italicized those referred to in the attached opinion.) you

“Q. Verschueren, Mr. I want to warn at this time you you say that found to be are under oath and that what here, if perjury you guilty

false, can could be testifying falsely perjury for under oath. A. Yes sir. Q. Q. penalty You are under oath. A. Yes sir. And the years perjury penitentiary, felony. ais for fifteen give you every Q. opportunity Now, I want A. Yes sir. you Q. truth. to state the You know that. Do [appellant] signed tell us when he want to this? You still say signed gave you?' ’54 he this October of when he it to you change your testimony Do want to A. not? I don’t change my testimony. signed He care to must have it. telling you Q. I know the truth. A. am truth, We want to right. you Mr............................Q.All Mr............................asked about told,you envelopes. penalty perjury. He about these You are you person person, stand, that is on the are the you here, do understand A. under oath down that? Yes sir. thing thing only,. Q. are concerned with one We one gave you Q. Now, the truth. A. Yes sir. Mr. Beck this your testimony? envelope October, 1954, is that A. Either Q. one, that writing, Mr. one or the other sir. This is Beck’s hand- you envelope Q. is it not? A. Yes. He handed handwriting only, with his on it' at one time and one time necessarily Yes, isn’t that true? A. but it is not the one thought you Q. I handed me in October of ’54. testified to envelope Mr......................... had Western first that envelope, it, Conference on the other other material he gave you envelope at a different time. You testified the first gave you he Western Conference Joint Council gave you Q. on it. A. I believe so. That is one you ’54, October Well, isn’t that A. correct? are con- fusing trying you, Q. me I am now. not to confuse sir. you telling I want to tell the truth. A. I am the truth. you Q. go penitentiary There nois reason to for somebody Q. you thinking else. A. I am that, not even about sir. thinking telling IWell, am about that, sir. A. I am Q. the truth far as I truth, so know it. envelope Let us know you you got if will. This is the ’54 October of ('indicating) yes Q. A. I one, believe that is the sir. That your testimony. my yes is A. To the best of recollection, Why Q. you sir. . . . would he send a check down to when he had several thousand dollars in cash? He testified Why $10,000 as much as in his safe at his own home. would you Maybe you he send a check down to cash. to can answer say, you Q. that. A. I couldn’t sir. Do want to hazard an you lying, answer? It isn’t because I is it? A. No sir. many, many cashed, Q. have checks for Mr. Beck. Mr. personal you

Beck would send his checks down to cash? Mr. Beck sat that stand testified he didn’t write year. two A. checks I said made checks out to him and Q. he would down, send them endorse them. Isn’t there right your place a bank next door to of business? A. Yes. you Q. But he would send them to cash out of some necessarily fund in the vault? A. He wouldn’t know I was cashing Actually them fund. out I have could cashed generally, them out the office there but were some cir- Q. cumstances where I couldn’t. Mr. Beck testified this morning through all his checks were channeled the B & B Company. testimony morning, Investment that he That is his matters, never bothered with financial his wife took expenses everything care of the home and all her else through maybe B B went the & and he wrote two checks year, say many. your testimony a consistent with he wouldn’t even Is that, Q. Mr. Verschueren. A. No. It isn’t very only telling you consistent, is A. I am it? what is the telling Q. you Q. truth. You are the truth? A. Yes. Are saying morning? Mr. Beck lied to us this I sir, A. No say you Q. wouldn’t so. One then, must be mistaken you is that correct? When did talk to Mr. Beck last your testimony about here on the stand? A. I have my testimony never talked to him on the about stand. you money Q. talked Have to him about this in the vault days? Q. in the and few A. No sir. You came in here cold last you going testify know about, didn’t what is Q. A. I had a fair Mr. it? idea. You haven’t talked to days past Sr., in the A. I Beck, several or several weeks? money, him, have talked with no sir. but about envelopes Q. sir, talk these You didn’t about safe? NoA. pretty Q. It that one time. dovetails with well testimony, fortunately? it, know, doesn’t A. I don’t sir. you Q. Beck, These checks cashed for Dave Sr. they? varying Oh, A. amounts. Not How much were very high. Q. much? can’t Mr........................., them How A. I going Q. those checks. You are here all remember long remembering. just starting. You are I When time you going get through again. going Mr......................... take over you telling are the truth are don’t think so we We you you stay cash a while. much did How to you Q. for? ... Do deal in Beck, Dave Sr. checks for personally. Q. I never sir, A. No I don’t have bills? $500 amazing. Somebody gives you a This is seen one before. you it. there have no recollection of You sit and bill $500 you give you somebody and a bill would and tell me $500 your gave you. it Is that testi- to remember who wouldn’t they they gave personally? Q. mony? me it to If IfA. having your possession reason into in-—if it came came something? Sir, A. are all amounts or check cashed a money. Q. proper about realize amount of I I have count, I if Somebody you that. handed talk not that. Let’s they? Q. did, and under A. Yes. Who bill, didn’t $500 say, are— Well, as I odds A. circumstances. what talking are about what We Q. mind odds. Never in the odds. What are am not interested are. I facts probably you gave A. It came bill? the $500 facts? Who Probably? yes. Q. A. It could have come the bank, from the get you go Q. and those bank Did the counter. over you? you you? I Did or didn’t A. bills, or didn’t two $500 Q. definitely I or You did not. sir, whether recall, don’t got you the bank went $500 whether know don’t you. somebody gave A. it came over Whether it to or bill expect people Q. these counter, no, I don’t sir. You you possession grand jury] come into to believe would [the already you probably Q. You bill— . said a $500 got I cashed. it. A. checks the went to bank With Why you Q. A. I ask for a bank? would bill $500 they may probably have bills, for a didn’t ask but $500 Q. given accepted Q. couldn’t me one. You it? A. Yes. You got you bill, it. No sir. when A. cash a check with $500 ample generally Q. of this A. There funds exclusive Then— probably it make amount I think would then don’t you Q. now, $1,000. difference if I had Not what think they gave you you the then, did think then when what you gave through it what went bill who $500 your through your Something mind, mind. went mister. your you got through mind What went when bill $500 you jury get you got did it from. and who Tell this who gotten have Well, bank, sir, from? A. I must it from Q. else it came over counter the— Not must what you Q. have about definitely Q. did A. I— I been done. What do? don’t care you get probabilities. How did A. I when it? possession. remember, sir, do I came into how jury you get can You want this believe bill $500 you got and don’t know the circumstances under which it. years yet. I am 51 old are I haven’t one of old and seen them How you? many Q. A. How of these have bills $500 (No your you response) Q. Well, A. seen life? how many? trying very many, Q. think, A. I am It isn’t sir. thought you Q. Yes, A. I is it? considerable. testified a ago only you just little had seen a while few them. You through testifying you got under oath seen a few you telling Well, them. time are Which truth? A. you getting Q. me I sir, are so confused— am confused? Q. I I No, don’t think the A. but am. is confused. you Why you supposed sitting confused, should to be telling Q. A. here the truth. Yes. The truth will never you, you get did bill, confuse never. Where two $500 you get them. did them? Under Where what circum- They may A. how? stances from whom have been may originals— Q. I am not interested in have How been. you get Tell me when and where? did them? A. I cannot got definitely you, Q. I sir, how them. tell and Two bills $500 you got you you got them, can’t tell how but both testimony years? your in last three own A. Yes sir. you Q. don’t, know circumstances. A. I But don’t No may original bills, sir, I don’t These be the I no. know. know. don’t you thought you got Q. said I went to bank and you those A. a bills? Just moment, said did I how come possession They may into of them. in have been en- originally. velope you willing testify Q. you Are now got they originals? never those bills, are No, A. I can’t say anything you say Q. that, sir. Is there can defi- nitely you anything you sit here Is there afternoon? say definitely? pleasant Q. can A. It Q. Yes sir. will be a re- happens. you when that . . . Have ever re- lief making request a ceived bill from the bank without a $500 They keep you for it? don’t them tills, know, in those at get all. they You can’t a bill a teller because $500 keep you you don’t them there. Did that, know Did sir? They question. that, know first. Answer that A. are there they day. you they Q. if have come in that Did don’t know keep They bills at all behind those windows. receive $500 you them and take them else. Did somewhere know that? Q. sir, A. No I No, did not. You know it I now. A. don’t. telling you Q. can’t They keep I am now. don’t them there. You get making request bill without it, aor $500 for you get you $1,000bill, the most can is a bill. Did know $100 that? No, From teller’s I window? A. did not know that. going Q. just . assume, We for the sake this dis- then, I cussion That what I that is correct know it be correct. because by people is have been told who know. A. get get Q. Now, Yes sir. can we the banker in here you’ve got the same banker out there I assume he is not an officer of Western of Teamsters or Conference your he, union, not member of where out there banker you you go Q. A. bank? Pardon. to— bank you go Denny Q. what do to? A. & Branch. bank Sixth my Mr. Beck doesn’t that bank, own does he? A. Not to knowledge. Q. Well, assume the banker will come Q. tell truth, can A. He we assume that? Yes will sir. they keep They tell us don’t bills those windows. $500 give brings them Fred Jr. don’t Verschueren when they give anyone don’t them to under circum- checks, they you present stances unless ask them when because you always says, checks and want cash the teller ‘How do you they? They always say it, want sir?’ Don’t that to you every they? They say, time, ‘Sir, don’t A. sometimes you you pay- Q. do how have it?’ Not on the care you get you roll, $500, make that that so wouldn’t wouldn’t special request came over bank, at how would that so $500 get envelope? thé ever into the Under counter theory get envelope? possibly That what could that you your your practice. practice see, You told us wasn’t you wanted to see afternoon, realized we this because you envelopes, you took them, never that never went to anything you and came union hall and went to the out then memory your air and in the fresh and refreshed back was you you paid payrolls at times checks told us cashed and put money, you in a I.O.U. each time would with this but you adjust bank then it later. Go there and would get money put in here. and it back Mr.............................. and you you you have said could asked gotten I you about the bill $500 assuming because now, from the 7/e are it bank. agreement, you pretty that and I know think well you get bank, them unless ask at the can’t bills $500 only pos- you got bank, so the have it at the that couldn’t way you have that is that could received bill sible it is $500 money put original be- part there that was got you it counter, couldn’t have because cause over procedure. you got your Nothing that over the counter isn’t gone envelope. could, have that If it tell us how. could A, go through originally. I Well, said, I did that As I would Q. take monies and— Mr. Ver- box envelope, schueren, with reference to this this Exhibit original given you by envelope Beck in is Dave envelope 1954. or November of This was sealed October you got Q. A. it, first this is 77? sir. when Exhibit Yes early you again open part And didn’t it until the Q. in 1955. Around months A. Sometime six went be- go you you had into fore occasion to into it. When went you paper piece piece this You it saw in there. saw this you your finger paper, opened Exhibit 79 when it with you Q. piece read it? A. Yes. Then unsealed you money paper. You did whatever had to do with the right? you it, A. I am that resealed not certain right Q. I time. it at that But it resealed when resealed always money put kept back in. You these en- the velopes always. Q. sealed? A. Not You resealed it at you money put back, after time, after the first trans- definitely say part did, A. action, the first of ’55? I won’t I you Q. transaction, reseal it did after first no. When you opened you it? A. I couldn’t as to the first time tell Q. Approximately A few after? dates, sir. when? months year years approximate. Q. A A. I couldn’t even or two you open You Did leave what? told Mr...................... after. right you you opened resealed it after this afternoon Why you say you you do didn’t. hesitate? it. This time you open envelope I—when innumer- Well, A. because you you know which time it and times how do sealed able Q. Mr............................youopened didn’t? envelope You told questioned you length resealed opening it. He at about your finger you it with would it and reseal then I you think he used have the you went further and asked whether or not any glue you it and said no, and still when we envelope very condition, it is stuck well— you getting your and are two now, bills back don’t $500 part you miss that on the record. Do I understand told this, you envelope Mr......................... resealed each time that you opened you Q. right? it? A. Now, Well— didn’t, is every say No, A. time? I every didn’t time. Did I I resealed it you Q. every you you I don’t think time, said said you opened money put resealed it the times it and back very, very and resealed it and interested, Mr.........................was you glue you glue you asked what kind of did use you said Q. no didn’t. A. I didn’t. This must be excellent glue on the envelopes Western Conference of Teamsters thing perfectly because the is sealed now. Understand we envelope can send the to the F.B.I. and determine from them whether or not it has been resealed numerous times, you or innumerable times as said. You were in there in- you? numerable times. You that, understand don’t A. Yes. you Q. you going So if decide all aof sudden here are to nobody tell us the truth —and in the room believes one you say you telling everything you word are us now that — today have Q. testified here to is the truth? A. Yes sir. You nothing you perfectly Q. have to hide? A. No sir. And are willing undergo any sort of examination to determine you telling if Q. are truth, is that correct? A. Yes sir. nothing going stop you There is at all that is proving you you Q. what said? A. I No sir. tell now If arranged give you you I that have lie detector test, will my attorney. take it? Q. A. I would have to consult Yes, thought, you telling I is what because are the truth, you? you telling you are truth would have no If qualms taking about a lie detector test because a lie de- person. tector not work on a truthful will It is an you exceptionally you machine, fine can’t fool it and are absolutely perfect subject you young because are you unless your you you miserably have wits about would fail you telling you the truth. Will take the test? differently Q. A. I have heard about the lie detector. Will you Q. No,A. I take the test? will not. You will not. You your attorney you? don’t have consult do You don’t any you? test, want to take do A. I will consult him first. you you? you, Q. test, take will But won’t Will now? thought. ..." I Q. that is what Yes, first. him A. I will consult case, instant (dissenting) In the dissent. J. —I Hunter, jury grand that the members determined it was not particularly prejudice. is This were free from bias atmosphere toward significant that existed in view grand county King time the at the impaneled. judicial proceeding concepts aof One the most basic concept impartiality. announced as essential This legislature and the jury proceeding both and decisions supreme statutes state, court of adopted Judge the rule dissent. Under cited in Donworth’s composed may majority, mem- prejudiced. rule constitutes This who are biased bers literally grave application will shake error that its such judicial system this state. the foundation of the grand jury proceedings vacated and set should be aside. Banc. June

[En 1960]9 rehearing per opinion Upon curiam matter, adhered a con- was, order, filed herein heretofore majority the court. stitutional rehearing

August 22, 1960. Petition for denied. (2d)

9Reported in P.

Case Details

Case Name: State v. Beck

Court Name: Washington Supreme Court

Date Published: Feb 3, 1960

Citation: 349 P.2d 387

Docket Number: 34636

Court Abbreviation: Wash.