43 Wash. 278 | Wash. | 1906
Tbe appellant was convicted of tbe crime of murder in tbe first degrea He appeals from a judgment imposing the death sentence. The errors alleged are of the court, in refusing the. sequestration of witnesses; in the reception and rejection of certain evidence during the trial; and in denying a motion for a new trial. Certain affidavits used on, the motion for a new trial are attached to- the transcript certified by the clerk. These affidavits were not made a part of the statement of facts, and are not certified by the trial judge. Respondent moves to strike these affidavits. This motion must be sustained under repeated rulings of this court. State v. Wood, 33 Wash. 290, 74 Pac. 380, and cases cited. State v. Yandell, 34 Wash. 409, 75 Pac. 988.
Twenty-six errors are alleged in the brief of appellant. It will not be necessary to discuss all of these assignments separately. We shall refer to such as are relied uplon by the appellant and presented by the record, after striking affidavits above mentioned. After the jury had been impaneled, and after the prosecuting attorney had made his opening statement to> the court and jury, appellant’s counsel requested that the witnesses for the state be excluded from the court room. The prosecuting attorney stated that he did not see why the rule should be invoked, and requested that Mr. Thompson be excused from the rule. The request of appellant was thereupon denied. Counsel for apptellant then said:
“I think that the conduct of the case so far warrants that these witnesses doi not hear each other’s testimony. It does
The court again denied the application. Appellant now insists that his right to have the witnesses excluded was an absolute right, and that, if the right was discretionary, the court abused its discretion. The weight of authority seems to be that the exclusion of witnesses from a court room during the trial is a matter within the discretion of the trial court. 1 Bishop, New Grim. Proc., §§ 1188-90; 1 Greemleaf, Evidence (16th ed.), § 432; 2 Elliott, Evidence, § 798; Abbott’s Trial Brief, Crim. Cases, p. 303; 3 Wigmore, Evidence, § 1839; 12 Cyc. 546, and cases cited. Elliott’s late work on Evidence states the rule as follows:
“The order is a matter of discretion for the court, and by the weight of judicial decision a party is not entitled to it as a matter of strict right, yet it is rarely withheld. It tends to promote justice, and should be granted in all proper cases, and the exclusion of witnesses in the exercise of the court’s discretion will only be reviewed on showing that it has been abused. In some states it may be claimed as a right. Usually all witnesses on both sides are excluded when such' an order is asked by one of the parties, but it is held that the court may make exceptions as to certain witnesses when making an order.” 2 Elliott, Evidence, § 798.
This court has followed the rule as above stated. State v. Mann, 39 Wash. 144, 81 Pac. 561; Griffith v. Ridpath, 38 Wash. 540, 80 Pac. 820; State v. Armstrong, 37 Wash. 51, 79 Pac. 490.
Nor do we think the court abused its discretion in this case. We find no good reason offered to thei trial court for the sequestration. When counsel for appellant stated his reason to the court for asking the order, he said: “I think that the conduct of the case so far warrants that these witnesses
A witness by the name of John Krum was called on the part of the state. This witness was a boy, sixteen years of age. After stating that he was acquainted with the defendant and had been with defendant in the vicinity of Newport in Stevens county for several days prior to the murder; that he came from Newport to Spokane with defendant, and was in a room adjoining defendant’s room at the time defendant was arrested; and after stating that he had several conversations with defendant after the arrest; he was asked to relate certain of' these conversations,. The witness persistently refused to do so. The court then, permitted the prosecuting attorney to ask him leading questions, and admonished the witness that it was his duty to answer them, and that if he did not answer, punishment would be inflicted upon him. The judge then sought to have the witness answer, but he still refused. In the course of the examination, which evidently consumed much time, the judge said to the witness:
After these and other questions of the, same purport had been asked by the trial judge, and the witness had refused to answer, appellant’s counsel requested the court to excuse the jury pending a preliminary examination of the witness. The court refused the request, and immediately the prosecuting attorney made the same request, and stated: “There is a matter I want to show to the court, . . . and I do not want to show it before the jury, and if it is proper to- go- before tbe jury after they return, I am willing to offer it then.” Thereupon the court excused the jury, and evidence was introduced to the judge to the effect that, while the witness Krum Was on the stand, the defendant would shake his head at the witness, and thereupon the witness would refuse to testify. This fact does not seem to he denied by the record. The court, thereupon, in the absence of tbe jury, endeavored, by persuasion and threats of punishment, to- get the witness to- testify, but without success. The court thereupon adjourned until the next morning. The witness was again called to the stand and again persistently refpsed to testify to- certain questions in the presence of the jury, whereupon tbe court fo-uud him guilty of contempt and sentenced him to six months imprisonment in tbe county jaiL
Some fifteen errors are assigned, all based upon what ooicurred during the examination of this witness: All of the remarks of the trial judge above quoted are assigned as separate errors; and it is also assigned that the court permitted leading questions, and refused to permit counsel for defendant to ask questions as to- whether certain officers had offered
Several assignments are made to the effect that the court erred in receiving evidence o-f other crimes committed by the
“It was not intended to show that appellant had been convicted of the crime of vagrancy or grand larceny, with which he had been charged, and the mention of those trials was a mere incident, the confessions which he made having been made in the presence of the officers at the time of the prosecution of these aforementioned trials, viz., for vagrancy and larceny. They were admitted as testimony in the nature of confessions, not a confession of the crimes of which he stood chargeable at the time the confessions were made, but of the crime of which he now stands charged. And we think, under ail authority, that such testimony is admissible; tbat it tended to prove the direct charge contained in the information; and that being true, it was competent evidence for that purpose, no matter where and under what circumstances the confessions were made, the only limitation being that they must be voluntarily made.”
We find no error in the record, and the judgment is therefore affirmed.
Root, Hadley, Dunbar, Crow, and Rudkin, JJ., concur»