109 Wash. 153 | Wash. | 1919
The appellant was convicted of larceny, and appeals from the judgment and sentence pronounced against him.
The appellant assigns that the court erred, (1) in commenting, in the course of the trial, derogatory of the appellant’s counsel; (2) in commenting in a manner derogatory of the evidence of the appellant; (3) in commenting on the evidence; and (4) in its instructions to the jury.
With reference to the first assignment, a witness for the state had testified to a conversation between the appellant and Tyrrell concerning the disposition of the currency which he had overheard and which he said occurred in the business place of the appellant. On cross-examination, the witness was interrogated relative to the persons present at the time of the conversation, stating that among the persons at the place was the clerk of the appellant, who was on the other side of a counter immediately in front of the witness. He further stated that the conversation between Tyrrell and the appellant was conducted “in a fairly large tone of voice, not extraordinarily large,” but
“Mr. Carrigan (cross-examining): Q. You say the man was right across the counter from this conversation and did not hear it? A. Sure. Q. You are pretty sure he did not hear it? A. I am. Q. You are pretty sure he did not hear any such conversation? A. Yes. Mr. Carrigan: I am equally sure of that. The Court: You had better be sworn, Mr. Carrigan, before you testify.”
No exception was taken to the court’s remark, and the cross-examination proceeded with regard to other matters. The appellant insists that the remark of the court tended to discredit his counsel before the jury and was so far prejudiced as to entitle him to a reversal. But we cannot so regard it. The statement of counsel was in itself improper. It contained the insinuation that, in the belief of counsel, the conversation related by the witness did not occur and that the witness had testified falsely. "While at the appropriate time in the course of a trial counsel may properly argue to the jury that a witness’ testimony is unworthy of credence because indicative of bias or prejudice, or is out of the ordinary, or for other causes appearing in the record, the appropriate time is not when the witness is testifying. The remark, therefore, merited rebuke, and the court did not overstep its proper bounds in administering a rebuke. Nor do we think the form of the rebuke objectionable. Counsel made an emphatic statement as to his belief concerning a matter which was the subject of inquiry, and it was not inappropriate to remind him that he was not a witness.
During the examination of the appellant, he testified concerning a_ purchase of gold pieces he had made from a third person in the presence of the prosecuting
After the examination had proceeded further, a separate offer of the gold pieces was made and they were admitted without objection. The remarks of the court at the time of the first offer forms the basis of the second assignment of error. But while it may be that the court went further in giving his reasons for rejecting the testimony than the circumstances warranted, we cannot think there was error committed. At this time, the materiality of the exhibits did not appear, and it was not a comment on the evidence within the meaning of the constitutional prohibition for the court to give a reason for excluding them. State v. Surry, 23 Wash. 655, 63 Pac. 557; Dunkin v. Hoquiam, 56 Wash. 47, 105 Pac. 149; State v. McDowell, 61 Wash. 398, 112 Pac. 521, Ann. Qas. 1912C 782, 32 L. R. A. (N. S.) 414. Nor can we think the exhibits were in any way discredited because once rejected on the ground of immateriality. By their subsequent admission as evidence the jury would understand that the court deemed them material for their consideration, and would understand, also, that the change of opinion on the part of the court arose because of the facts developed in the further progress of the trial. Plainly, they could not have understood that evidence rejected because of immateriality when first offered was so regarded by the court when after-wards admitted.
The appellant, while a witness in his own behalf, denied that the prosecuting witness had ever left with
“Your record is just as good as anybody’s when you are under oath here, as far as this court is concerned, and this jury, too. You are a perfectly credible witness before this court, and you have not been impeached. ’ ’
These remarks of the court furnish the foundation for the third assignment of error. It is contended that it is within the prohibition of § 16, art. 4, of .the state constitution, which provides that judges shall not charge juries with respect to matters of fact, nor comment thereon, but shall declare the law.- That it was a comment on a matter of fact, there can be but little question. There was an issue as to whether the ap
The trial court, however, at the time exception was taken to his remarks, instructed the jury that they were to be given no consideration by them, and in his general instructions told them that they were the exclusive judges of the facts and of the credibility of the witnesses. It is the contention of the state that the error committed by the comment was cured by these instructions and that reversible error cannot now be predicated thereon. There are, of course, many errors which may be committed at one stage of the trial that can be arrested and cured by the action of the court at a later stage. Without specifically referring to the cases, we have held that error committed in admission
“This was a most damaging comment, either upon the character of the witness or upon the credibility of his testimony. True, no exception was taken to the court’s remark, and he did instruct the jury in his general charge and in a general way to disregard any remarks of court or counsel. But under the rule announced in State v. Jackson, 83 Wash. 514, 522, 145 Pac. 470, these things cannot be permitted to preclude an insistence by a party upon his constitutional right to have his evidence submitted to the jury without comment by the court, when, as here, we cannot say that an instruction to disregard such comment would have removed its effect.”
The fourth and final assignment relates to the instruction of the court to the jury on the question of reasonable doubt. As a part of its instruction on the particular question, the court gave the following:
“A reasonable doubt is such a doubt as exists in the mind of a reasonable man after he has fully, fairly and carefully compared and considered all of the evidence introduced on the trial. If, after a careful consideration and comparison of all of the evidence, you can say you have an abiding conviction of the truth of the charge, you are satisfied beyond a reasonable doubt.”
„ For the errors indicated, the judgment is reversed and a new trial awarded.
Holcomb, C. J., Mount, Mitchell, and Bridges, JJ.," concur.