130 Wash. 612 | Wash. | 1924
The appellant, William Elder, was found guilty by the verdict of a jury of carnally knowing and abusing his step-daughter, a child under the age of fifteen years. For a reversal of the judgment of conviction pronounced against him, he makes some sixty-seven assignments of error. These, we think, do not require notice seriatim. They can he grouped under more general heads, and it is in that manner we shall consider them.
A Mrs. Dean was called as a prospective juror and examined as to her qualifications to sit as such. At the conclusion of the examination, she was challenged for cause by the appellant, which challenge the court denied. The impaneling of the juror was proceeded with until the appellant had exhausted all hut one of his peremptory challenges. He then renewed his challenge for cause against this particular juror, stating to the court that he wished to exercise his remaining
After the jury had been impaneled, the trial judge called the attorneys of the respective parties to the bench and inquired of them whether it was their desire that the jury be not allowed to separate during the trial. On receiving an affirmative answer, he said that it was more than likely that certain members of the jury had automobiles on the street which they would desire to have cared for, and that certain others of them might wish to announce to their homes the cause of their failure to return, and asked whether if such requests were made they should be granted. To this counsel consented. The court then announced to the jury that they would be kept together during the trial, whereupon a juror stated that he had an automobile on
The appellant assigns error on this action of the court, contending, if we correctly understand his contentions, first, that he did not assent in person, and second, that they wer'e errors which could not be cured by assent. To the first part of the objection it is a sufficient answer to say that his counsel assented to them in his presence without objection on his part, and that if his counsel spoke without his authority his time to object was then, and that it is too late after verdict. State v. Stockhammer, 34 Wash. 262, 75 Pac. 810. The cited case is authority, moreover, for holding that these are matters on which counsel has the right to speak for his client, and that the interest of orderly procedure requires that when he does so speak, it be conclusively presumed that he speaks with authority.
As to the second part of the objection, there are rights accorded by law to a defendant in a criminal cause which he will not be permitted to waive (State v.
The appellant argues that the action of the court requesting a separation practically amounted to coercion in so far as the defendant was concerned, as after the request they could not well refuse without prejudicing the defendant’s cause with the jury. But the preliminary conversation, as we have stated, was without the hearing of the jury. Plainly, if counsel then did not desire even a partial separation of the jury such as was had here, he had but to refuse his assent without knowledge of the fact- being made known to the jury, when undoubtedly it would have been respected. This court has held it not reversible 'error to ask the defendant in the presence of the jury whether or not he will consent to the jury’s separating (State v. Holedger, 15 Wash. 443, 46 Pac. 652), although in the opinion in the case it recommended the practice pursued in this instance.
It is next complained that the court, at various and numerous times during the course of the trial, commented upon the evidence. These assignments we shall not notice specifically. Many of the instances set out could, under no circumstances, be held to be a comment, and the others, when read with the context, are robbed of all their virility. The statements thought to be comments were statements made when ruling on the admissibility of testimony, and were addressed to
We have heretofore recognized, and here recognize, that the court’s privileges and duties in this respect may be abused, but the record is clear of any such implication in the instant case.
The appellant next complains of the conduct of the trial judge, asserting that he manifested impatience and heat towards his counsel, thereby prejudicing his cause in the minds of the jury. But we find in the record only one instance where it can be said that any such thing occurred in the presence of the jury. The appellant’s counsel made the case a very trying one for the trial judge. The prosecuting witness seemingly was not of a very high mentality, and was slow and reluctant in her answers. The constant objections by the defendant’s counsel to the questions put to her by the state made the progress of the trial slow and difficult. In one instance the trial judge himself asked the witness a question. Counsel objected to this, admonishing- the judge that “the state has its attorney here to prosecute the case.” To this the judge replied in language somewhat emphatic. But aside from the incident itself, there was nothing prejudicial to the appellant in the court’s remarks. They were addressed
The next complaint is that the court unduly limited the evidence on the part of the defendant. The state introduced a physician, who testified to an examination he made of the prosecuting witness shortly after the offense charged was alleged to have been committed, in which he found a ruptured hymen. He did not say that the hymen bore evidence of having been freshly ruptured, and frankly stated that he had no means of knowing what caused the rupture. To combat this, and as evidence affecting the credibility of the prosecuting witness, the court permitted the appellant to show a purported admission that she had had sexual intercourse' with another man, that she was an incorrigible and had been sent to a reformatory institution as such, and to show her general character and habits prior to the time of the alleged offense. The court only checked counsel when he thought he was going too far in this latter direction. How far a litigant will be permitted to go in showing facts affecting the credibility of a party or witness is largely within the discretion of the trial court, to be reviewed for an abuse of the right only. Here, we think, the court allowed the appellant all of the latitude the case required.
In support of his motion for a new trial, the appellant filed his own affidavit and the affidavit of his counsel averring that the prosecuting attorney stated in his closing argument to the jury that the date elected by the state as the time of the commission of the offense was not material; that it was the duty of the
Finally, it is said that the evidence was insufficient to sustain the verdict. But we think the record is ample in this respect. Not only was there direct testimony of the prosecuting witness and her younger sister to the overt act, but there was evidence by other witnesses of lascivious behavior on the part of the appellant towards the prosecuting witness. The evidence was contradicted, it is true, but the question was nevertheless one for the jury and not this court.
The judgment is affirmed.