State v. Burns

19 Wash. 52 | Wash. | 1898

The opinion of the court was delivered by

Soott, C. J.

The defendant was convicted of grand larceny and has appealed. The property stolen was described in the information as being two one hundred dollar bills and one fifty dollar bill, lawful money of the United States, etc., “a more exact description being not now known.” The testimony showed that one of the one hundred dollar bills was a United States treasury note, that the other was a national bank note, and that the fifty dollar bill was a silver certificate, and it is alleged that the prosecuting attorney by the exercise of ordinary diligence could have ascertained these facts and given an exact description of the money. It is contended that this constituted a fatal variance. Section 1253, Vol. 2, Hill’s Code (Bal. Code, § 6859), provides:

“In an . . . information for larceny ... of money, bank notes, etc., . . . it is sufficient to allege the larceny . . . to be of money, bank notes, etc., . . . without specifying the coin, number, denomination, or kind thereof.”

And while it may be conceded that the information should give as correct a description as can be done under the facts known or readily ascertainable, where a description is attempted, we think there is nothing in the case to show want of diligence on the part of the prosecuting attorney, and that the description was sufficient under said statute. Hor do we think any injury resulted to the defendant.

It is next alleged that the court erred in refusing to grant a continuance. The record shows that the defendant was charged with the offense and arrested on the 20th day of May. The cause was once continued and finally called for trial on the 28th day of June. We think there was no ahnse of discretion shown in refusing to grant a further continuance.

It is next alleged that the .court erred in commenting on the testimony. The language complained of is that the court said: “It is mostly a case of positive testimony.” This was in fact true. The remark was not open to the charge that the court expressed an opinion on the weight of the testimony. There was no error in this respect.

The fourth assignment of error relating to the attempt to prove the bad character of the complaining witness is not supported by the record. Every question asked was answered and there was no offer of further proof ruled out.

As to the next matter, the record does not show a sufficiently definite offer of proof to show that the money might have been lost in some other way, even if such proof would he admissible at all considering the direct testimony against the defendant.

It is contended that there was error in allowing certain money to he put in evidence, alleged to have been taken from the person of the defendant when he was arrested, as there was nothing to identify it as having been any part of the money taken from the defendant. We think, however, it was competent to show that he had money when arrested; its weight as a circumstance tending to show guilt was a matter for the jury to consider.

It is also contended that the court erred in stating to the jury in one of its instructions that it was not permissible to introduce evidence affecting the character of the defendant; that the court would not permit it, for instance, to he shown that he had committed another offense, and it is contended that this suggested in effect that the defendant had been guilty of another offense when there was no proof of the same, and that it tended to his prejudice. We think the instructions were fair to the defendant and correctly stated the law, and that no prejudicial error resulted from the remark in question, although it properly had no place in the instruction. In this connection, it is alleged that the court was hostile to the defendant or unduly biased against him, although it is not claimed that there was any intentional exhibition of such feeling, but it is based upon the defendant’s! view of the entire course of the trial, and it is contended that he should have a new trial upon that ground. "We find nothing in the record to substantiate this statement, and it should not have been made without more definite grounds. It is also alleged that the verdict was contrary to the evidence. Without going into the evidence in detail we are of the opinion that it was amply sufficient to warrant a conviction.

It is also alleged that the jurors were allowed to separate after the court had ordered them to be kept together. In support of this it appears the jury was conducted to a restaurant in the city by bailiffs for their meals, and that one of the jurors was taken sick and was unable to walk back to the courthouse, but was left in charge of one of the bailiffs and rode to the courthouse in a street car, while the rest of the jurors walked in charge of another bailiff. There is nothing to show that any member of the jury was tampered with in any manner, and there is clearly no error in this particular.

Affirmed.

Andebs, Dunbab and Rea vis, JJ., concur.