State v. Hawkins, 27 Wash. 375

State v. Hawkins

27 Wash. 375 | Wash. | 1902

The opinion of the court was delivered by

Dunbar, J.

Appellant was convicted of murder in the first degree, and judgment and sentence of execution was pronounced. From such judgment appeal is taken to this court. The first assignment of error is that the court erred in permitting Hon. Henry McBride, the lieutenant governor of this state, to appear and prosecute said defendant. This assignment is based upon the fact that the law creates the governor of this state a court of mercy, in which is vested the pardoning power and the right to commute the death sentence; that under the law the party appealing for pardon or commutation has a right to appeal to an impartial tribunal, and that a prosecuting officer cannot be such an impartial tribunal. But, without passing upon the question of whether or not in ordinary circumstances the law places any inhibition upon the right of the lieutenant governor to appear in the prosecution of a person accused of an offense against the laws of the state, in this instance *377it appears from the record that Henry McBride, to whom the objection is directed and who assisted in prosecuting the appellant, had been associated with the prosecuting attorney of Skagit county in the prosecution of this cause and this appellant prior to the time that he was elected lieutenant governor of the state, this having been the second trial for this offense to which the appellant was subjected, and the judgment following the first trial having been reversed by order of this court on appeal. So that, if an acquaintance with the facts of the case arising from prosecution of it would tend to influence a lieutenant governor who under the law was liable to become an acting governor, that information had already been furnished in this case. Practically, therefore, there is no merit in the assignment.

The second contention is that the court erred in sustaining the objection of the prosecution to the following question, “In what condition did you find Hamilton in the jail when you went in after him ?” Witness had testified to the condition of Hamilton, the defendant, as to being sober prior to the shooting, but had not testified or been called upon to testify in relation to his condition after he had gone to the jail, and the question was in no sense proper cross-examination. It may have been competent for the defendant to prove his condition after he had been confined in the j ail, but if so it could be proven only by direct testimony, or on cross-examination where the witness had testified to his condition at that time and place.

The next contention is that it was error for the proser cuting attorney in his opening argument to comment to the jury on the fact that the defendant failed to put witnesses on the stand to prove his good character, and that that error was not cured by an instruction from thejudgeto the jury to disregard such comments. Immediately upon *378the making of the remarks objected to, the court instructed the jury not to consider any remark made by counsel feflecting upon the character of the accused, for the reason that the defendant’s character was presumed to be good. We do not think under the circumstances that the remarks of the counsel should work a reversal of the judgment in this cause, for the prompt instruction of the court that they should not consider these remarks, and that the defendant’s character was presumed to be good, we think fully cured the error committed by the prosecuting attorney. If every indiscreet remark that is made -by an attorney in-the prosecution of a criminal action or every mistaken idea of the law which may find expression through him would necessitate the discharge of the jury and the retrial of the action, the prosecution of criminal trials would be so hampered and impeded that they would "become comparatively impracticable; and, considering the importance which attaches to every remark of the court in the minds of jurors, it appears certain to us that the instruction of the court deprived the remarks of counsel of any prejudicial influence on the interests of the defendant.

These being all the errors assigned, the judgment is affirmed.

Reavis, C. J., and White, Mount, Fullerton, Anders and Hadley, JJ., concur.