4 Wash. App. 947 | Wash. Ct. App. | 1971
Defendant, William Eugene Guffin, appeals from a conviction for having sold a television set knowing it to be stolen property.
The issue determinative of this appeal is whether the court, in the following colloquy between itself and the foreman after the case had been submitted to the jury, committed reversible error by commenting upon certain evidence:
The Court: You had an inquiry to make of the court? Mr. Nelson: Yes, as to the charge, we are trying to identify the set and it says a Magnavox color set and there was a question which was actually involved. The Court: Of the two exhibits? Mr. Nelson: Yes, there is no serial number; one has a handle and one doesn’t, one looks like a portable and one a table model. The Court: You will have to go back to the testimony as to which of these two sets is the one alleged to be the item sold to the tavern. There is no requirement the Information set out the serial number. The charge only has to state in general language what the item is. When it comes to the trial, the particular item involved you will have to go back to your recollection of the testimony as to which of these two sets the testimony indicated was sold at the
(Italics ours.)
During trial two television sets were admitted in evidence as stolen items from the burglary of a television store. One was subsequently identified by a witness as a set he had purchased from defendant. Defendant took the stand, admitted to selling the witness a television set, but did not identify either of the sets which had been admitted as the one sold. Although the trial court at the beginning of its statement recognized defendant had not admitted to having sold either set, it overstepped the bounds of propriety by the end of the exchange (cf. italicized portion of colloquy) in such a fashion as to constitute a comment on the evidence. State v. Jacobsen, 78 Wn.2d 491, 495, 477 P.2d 1 (1970); Const, art. 4, § 16.
However, the “dispute”, if it can be called that, is an imagined one. While defendant urges as error the admissibility of one of the sets, on the basis of insufficient identification, there was ample evidence identifying it as a set stolen
The test as to whether a prohibited comment requires a new trial is whether the party complaining of the comment was prejudiced by it. State v. Haye, 72 Wn.2d 461, 433 P.2d 884 (1967); Blackburn v. Groce, 46 Wn.2d 529, 536, 283 P.2d 115, 119 (1955). After a review of the entire record, we are unable to find defendant was so prejudiced by the court’s comment. State v. Martin, 73 Wn.2d 616, 627, 440 P.2d 429 (1968).
Judgment is affirmed.
Green and Evans, JJ., concur.