85 Wash. 218 | Wash. | 1915
The appellants were jointly charged with assault in the second degree, and each convicted of assault in the third degree; from which conviction, they appeal.
I. An error is assigned in that the court permitted the state to introduce testimony by a witness named Burke as to statements made to the witness by one of the defendants, Frank Ross, after the arrest of the defendants. Witness Burke assisted in the arrest of this defendant. On the return to the county seat, some conversation occurred between witness and Frank Ross concerning the prosecution and the matter for which they were being prosecuted. It is insisted by the appellants that the conversation was clearly prejudicial to their rights; in other words, that it conveyed the impression to the jury that defendants were having trouble over there with other people beside Mr. Bradley, the prosecuting witness, and no other conclusion could have been reached by the jury; and also conveyed the idea to the jury that defendants had threatened to commit a crime more
II. Error is also assigned as to the restriction of the cross-examination of witnesses Claud Venderpool, May Vanderpool, A. A. Bradley, and J. N. Howard. We perceive no error in the rulings of the court in regard thereto. As an example, witness May Vanderpool was asked if she had not claimed that Mrs. Boss (mother of defendants) jumped her claim out there, and if she (Mrs. Vanderpool) had not employed Mr. Abel in regard to that matter. There certainly was no error in excluding cross-examination as to this subject. It was the duty of the court to restrict cross-examination of witnesses to the issues involved in the case, either directly or reasonably collateral thereto, such as their bias and interest in the matter under consideration, and we think the court did not abuse its discretion in restricting the cross-examination of all the witnesses as to which error is as
III. Appellants urge that it was error for the court to instruct the jury defining the offense of assault in the first degree. The defendants were prosecuted for assault in the second degree, which, of course, includes, if the facts warranted, the lesser offense of assault in the third degree. The court in its instructions gave brief definitions based on the statutes of the offenses of assault in the first degree, second degree, and third degree; and further instructed the jury as follows:
“The defendant is not charged with assault in the first degree and a definition of that offense is only given to you that you may better understand the other degrees.”
This instruction was proper to be given in the case, for the reason that the statute further provides that any assault not constituting assault in the first or second degree is an assault in the third degree. In order, then, for the jury to understand what would not be an assault in the first degree as well as what would not be an assault in the second degree, it was not improper for the court to give them a definition of assault in the first degree, thus distinguishing between assaults in the first and second degrees and assault in the third degree, of which defendants were convicted.
The appellants also contend that it was error for the court to instruct the jury as to assault in the second degree. They argue that a careful examination of the statement of facts clearly shows that there was no evidence at all warranting
“(3) Shall willfully inflict grievous bodily harm upon another with or without a weapon; or
“(4) Shall willfully assault another with a weapon or other instrument or thing likely to produce bodily harm.”
The evidence on behalf of the prosecution was to the effect that the prosecuting witness Bradley, on the date alleged, was in a place where he had a right to be; that he was overtaken by defendants Trank Ross, Earl Ross, and another; that he was first insulted and called vile names, then disarmed, by defendant Earl Ross, of a revolver which was hung in a scabbard from his shoulder, and which he had not touched or attempted to use; and then first assailed by defendant Frank Ross, who struck him “across the jaw with something that felt more like a slug of iron than anything else;” that he was hit several “licks” afterwards, but could not really tell how many or by whom. Other witnesses for the prosecution testified that he had a cut under each eye, one of them about three-fourths of an inch or more long, and the other an inch or longer; that both his eyes were swollen almost shut, and that his jaw was severely swollen, the swelling extending down to the cords of his neck. A doctor, who examined him on the Thursday following the Sunday on which he was assaulted, found that he had black and blue areas about both eyes and some swelling about the
IV. An error is urged upon the failure of the court to instruct the jury that the law presumes the defendants innocent, and that this presumption of innocence remains with the defendants throughout the whole trial and until said presumption of innocence is overcome by the state by competent evidence beyond a reasonable doubt; and that this is true even though the defendants do not request the same, this duty being provided for by law. It is urged that § 16, art. 4 of the constitution of the state of Washington, which reads: “Judges shall not charge juries with respect to matters of fact, nor comment thereon, but shall declare the law;” and the statute of 1909, Rem. & Bal. Code, § 2308, as follows: “Every person charged with the commission of a crime shall be presumed innocent until the contrary is proved by competent evidence beyond a reasonable doubt; and when an offense has been proved against him, and there exists a reasonable doubt as to which of two or more degrees he is guilty, he shall be convicted only of the lowest;” render it the imperative and mandatory duty of the court in all criminal cases to instruct the jury as to the presumption of innocence. Cases from other jurisdictions are cited to sustain this contention: People v. Potter, 89 Mich. 353, 50 N. W.
There is no doubt whatever that, had this instruction been requested, it would have been the duty of the court to give the instruction, and error for him to refuse it. This court, in State v. Myers, 8 Wash. 177, 35 Pac. 580, held that, in a case where the accused fails to testify in his own behalf, it is the duty of the court under the statute, without an affirmative request therefor, to charge that no inference of guilt should arise against the defendant on account thereof; reaffirming the decision of the court in Limbeck v. State, 1 Wash. 336, 25 Pac. 452. This case has been recently reaffirmed in the case of State v. Hanes, 84 Wash. 601, 147 Pac. 193. In referring to the cases of Limbeck v. State and State v. Myers, supra, Chadwick, J., said it was there held “that this statute [requiring the court to instruct the jury that no inference of guilt shall arise if the accused shall fail or refuse to testify in his own behalf] is mandatory and that it is the duty of the trial judge to so instruct the jury; that a failure to do so is reversible error. An engaging and persuasive argument is made by the prosecuting attorney in which we are asked to overrule our former holdings. If the matter were an original question we would be inclined to consider some of the reasons urged in support of his argument. The cases cited followed the letter of the statute, which says, ‘It shall be the duty’.” In the case at bar, the appellants requested no instruction as to the presumption of innocence of defendants, and the omission to give such instruction was not called to the attention of the trial court until the exceptions were filed and reasons urged for a new trial. The trial court instructed the jury as follows:
We admit that the question presented is one of some nicety and importance. In State v. Mayo, 42 Wash. 540, 85 Pac. 251, Fullerton, J., passing upon the question, where the appellant especially requested the court to instruct the jury on the law relating to the presumption of innocence and the court refused so to do, said:
“This was error. The accused is entitled in every instance to an instruction on the presumption of his innocence. The court need not, of course, give the instruction in the language of the request unless it so desires; but when requested to instruct as to the presumption of innocence, it should comply therewith in some form, such as will correctly inform the jury as to the law pertaining thereto.”
The authorities seem to be unanimous that, where such an instruction is requested, it is error to fail or refuse to give it, and with those authorities we concur. But the general rule now is, except in cases where there are specific provisions of the statute which are mandatory upon the court, as in the case under our statute, of instructing the jury as to the failure of the defendant to testify in his own behalf, that, subject to a few statutory innovátions, “mere non-direction, partial or total, is not ground of new trial, unless specific instructions, good in point of law and appropriate to the evidence, were requested and refused. Thompson, Trials (2d ed.), § 2341; State v. Parsons, 44 Wash. 299, 87 Pac. 349, 120 Am. St. 1003; People v. Graney, 91 Mich. 646, 52 N. W. 66; People v. Smith, 92 Mich. 10, 52 N. W. 67; People v. Ostrander, 110 Mich. 60, 67 N. W. 1079; 12 Cyc. 621; 22 Am. & Eng. Ency. Law (2d ed.), 1281; 11 Ency. Plead. & Prac., 354.
“A premium should not be placed on the practice in this case. Counsel owe it to the trial judge to be attentive to the charge and suggest corrections where respondent’s rights are injured by it. Especially is this true where the rule is as well understood as in these particulars. Again, while an exception need not be taken to misstatements of law in the charge, it is usually necessary where the fault consists of an omission. It is only fair to the public and to the trial judge. . . .”
So in this case the counsel owed some duty to the court, and we do not approve of counsel in a case sitting by inert and permitting the court to commit an inadvertent error which, by the slightest and simplest suggestion could be cured before the jury received the case. If we are to consider every inadvertent error of omission or even of commission committed by the court as necessarily prejudicial and ground for the reversal of the case, it will soon become so that an appeal to this court will be little else than a trial of the trial court, and the real merits of the case in controversy will escape attention. Certainly it is the duty of the trial court to see that the accused in a criminal case has a fair and impartial trial. While we would not approve of the deliberate omission of the instruction as to presumption of innocence in a criminal case, we will not, for mere nondirection, where no such instruction was requested and where the court gave a correct definition and instruction as to reasonable doubt and the requirements of the prosecution in establishing a case, hold that such nondirection is prejudicial error. People v.
V. An error is assigned upon the allowance by the court of argument by the special counsel for the state to the jury, that defendants had not introduced any evidence of good character because their witnesses had not heard any one say anything about defendants being peaceable, law-abiding citizens. It is alleged in affidavits, made by each of the counsel for appellants after the trial of the case on a motion for a new trial, that, at the time these remarks were made in argument by counsel for the state, they were objected to by defendants, and that the court refused to interfere in the matter; and it is also urged that other improper and prejudicial remarks were made by counsel for the state, which were objected to and no exclusion thereof made by the court. These matters were included in the statement of facts by copies of the affidavits relating thereto, which, as stated, were filed after the trial by counsel for the appellants. We think the matters here urged are ruled by the decision of this court in State v. Johnston, 83 Wash. 1, 144 Pac. 944. In that case, the court, per Ellis, J., say:
“It is true that a copy of an affidavit of one of the attorneys for the appellant appears in the statement of facts in which he sets out what he claims to be the substance of the objectionable statements, . . . Whatever the true purport of the incident complained of, it occurred in the immediate presence and hearing of the trial court. What actually occurred was a matter peculiarly within the knowledge of the trial judge. Either a stenographic report of the argument or a statement of the trial judge as to what was its purport, would have given it to us from an authentic source.
See, also, State v. Jakubowski, 77 Wash. 78, 137 Pac. 448; State v. McGonigle, 14 Wash. 594, 45 Pac. 20; State v. Poyner, 57 Wash. 489, 107 Pac. 181.
In the case at bar, these affidavits were not controverted by the state by counter affidavits, but the court, in the face of these affidavits, denied a motion for a new trial. We may, therefore, infer that he, knowing what actually occurred at the time of the trial, passed on the alleged facts therein contained adversely to them. Viewing the matter from whatever angle we may, we fail to find a sufficient predicate in the record to sustain the claim of prejudicial misconduct. State v. Johnston, supra.
VI. Lastly, it is claimed by the appellants that the trial court should have granted a new trial, and that the verdict of the jury was clearly against the weight of the evidence. With this contention we do not agree. We have carefully examined the record of the evidence in the case and, without specially alluding to any of it, we simply state that we consider the evidence amply sufficient to warrant the jury, if they believed it, in finding defendants guilty of one of the degrees of assault charged. The verdict of the jury and the punishment assessed by the court were lenient.
We find no prejudicial error in the record, and the judgment is affirmed.
Morris, C. J., Mount, and Parker, JJ., concur.