93 Wash. 124 | Wash. | 1916
Appellant, prosecuted for murder, was convicted of manslaughter, denied a new trial, and sentenced. He urges as grounds of reversal the refusal of two prayers for instructions and the consequent alleged error in denying a new trial.
The statement of facts is incomplete, does not contain “all the material facts” nor “all the facts agreed to be material by the parties,” and is certified by the trial judge to omit the entire testimony of a number of witnesses who testified, and the cross-examination of those witnesses who did testify, including that of the defendant himself, whose direct testimony is incorporated therein.
No amendments were proposed by respondent, but timely motion was made to require appellant to correct his proposed statement by including the omitted cross-examination of the witnesses who testified and the testimony of the other witnesses which was omitted; and an alternative motion to strike the proposed statement for such omissions. No attention was paid to these motions by appellant, and, so far as the record discloses, no action was taken thereon by the trial court.
Upon this state of the record, respondent makes several motions, to strike from the statement and the transcript, to strike the certificate, and to strike the entire statement and affirm the judgment.
We feel that the last motion, to strike the entire statement and affirm, is well taken. We have said that “the burden is on the appellant to furnish a statement of the testimony sufficient to show this court the facts upon which the assignments of error are predicated and to give this court a full
There may be two forms of certificate to a statement of facts:
(1) It may certify that the record contains “all the material facts, matters and proceedings heretofore occurring in the cause and not already a part of the record;”
(2) It may be certified as containing all the facts, matters and proceedings occurring upon the trial which “the parties have agreed to be all that are material” to the hearing on appeal. Rem. 1915 Code, § 391.
The certificate before us does neither, and there was no agreement of the parties that the statement contained all the facts, matters and proceedings occurring upon the trial which were material. No attempt was made by appellant to furnish a complete statement containing all the material facts, matters and proceedings occurring upon the trial, or to compel one.
We have consistently held, from Kirby v. Collins, 6 Wash. 297, 32 Pac. 1060, to State ex rel. Miller v. Seattle, 45 Wash. 691, 89 Pac. 152, that, upon such condition of the record, the statement should be stricken. As in the last cited case, by the certificate in this case “we are advised . . . that all the material facts which were before the trial court and which controlled its action are not before us.”
Assuming, however, that the statement contains all the facts which appellant supposed were and are material to the question of the propriety and correctness of the requested instructions, and because of the gravity of the case and its importance to appellant, an aged man, we have carefully looked into the record. We are first confronted with the fact that the testimony of the appellant himself upon cross-exami
The seventh instruction was given, so far as the legal principles submitted were concerned, omitting only the recital of evidence on behalf of appellant prefacing the same. Recitals of evidence in instructions are generally unnecessary and seldom proper, although not necessarily erroneous because thereof. Instructions should clearly state the law, as this one did, and not ordinarily recite facts or evidence.
We have thus discussed the matters complained of by appellant to demonstrate not only our solicitude for the assurance of a fair trial to the appellant in a prosecution of such grave consequence to him, but to show that, in our opinion, it would probably be our duty to affirm the verdict and judgment upon the complete record; but certainly, in any event, upon the imperfect record brought to us, we cannot do otherwise.
Morris, C. J., Bausman, Main, and Parker, JJ., concur.