103 Wash. 53 | Wash. | 1918
— Accepting a statement made by appellant to the officers after his arrest, and to which we shall hereafter refer, and other testimony the competency of which is not challenged, it is made to appear that one J. L. Eandles was, at and prior to the 11th day of April, 1917, engaged in the drug business at Granite Falls, in Snohomish county. He had in his employ one Harry Wallin. Appellant had met up with Wallin in Seattle some days before, and it was arranged that Wallin would sell to defendant thirty-five gallons of whiskey at $5.50 per gallon. The time fixed for the delivery was on the night of April 11, Wallin agreeing that he would have the whiskey packed in containers for shipment by automobile, and that he would so arrange the store and its interior as to make
Before taking up other assignments of error, it will be proper to refer to the confession of appellant. It is contended that it was obtained under the coercion of “numbers, superior talent and ability, and legal knowledge.” Appellant, when arrested, was brought into the presence of the mayor of Granite Falls, who was, at the same time, a justice of the peace and an attorney at law, the chief deputy sheriff, also a lawyer, the prosecuting attorney and others, who took his confession and reduced it to writing. It was then signed by appellant. We find nothing in this circumstance to taint the transaction with duress or coercion. The confession, so far as the testimony of the state is concerned, was made voluntarily, and deliberately signed. While we hardly think the question is in issue, if it were, the court instructed the jury to reject the confession as evidence if it found that it “was made under the influence of fear induced by threats.” It being at best a disputed question of fact, the verdict of the jury concluded appellant to pursue the question further.
Appellant complains that the state has failed in its proofs, in that it is not shown that the goods transported were, in fact, whiskey. This contention rests entirely upon the testimony of appellant and his co-
J. E. Johnson, who was accused of the same crime, was a witness for appellant. When upon the stand he was asked concerning the testimony of Wallin, who was also a witness, as follows:
“Q. Counsel has asked you if you had any understanding with Wallin. In your trial do you remember Wallin came up on the stand, under the order of the court, and refused to tell the truth in your case?” A. He has— Q. Do you remember he wouldn’t answer questions, just like he has done now? Wallin, I am talking about.”
The court then interrupted with the following remark: “I do not think that is a fair statement. The court never ordered him not to tell the truth.” It is complained that this remark of the trial judge was unfavorable and critical and was calculated to deprive the appellant of a fair trial. As written and properly punctuated, it is evident that the question did not im
It is also insisted that, after some objections had been made and sustained to the introduction of improper testimony, the trial judge said, “You may ask him if he made any objection to the particular parts mentioned.” We find no error in this. We are not inclined to treat the court as an umpire to decide cases, or to conduct trials, upon the wit and skill of counsel. Within proper bounds, it is the duty of the court, and it is consistent with the impartial administration of justice, to direct the course of the trial and to mark the boundary between testimony which is competent and that which is incompetent.
It is also complained that the court instructed the jury that, if it believed from the evidence and beyond a reasonable doubt “that the appellant, Henry Seablom, . . . purchased, stole or secured in any way and had in his possession more than two quarts of whiskey, then I instruct you that you must find the appellant guilty as charged.” Ordinarily the use of the word “stole” or “stolen” would be prejudicial, for, as counsel rightly contends, it involves the reference to another serious crime; but under the facts disclosed, appellant cannot complain, for whatever he had in possession was confessedly stolen, and the court was warranted in treating the manner in which the liquid was obtained as an admitted fact.
The court instructed the jury:
“You are further instructed that certain evidence has been admitted as to statements made by the witness Johnsop while in confinement at the county jail.
It is complained that the instruction calls particular attention to the witness Johnson, who had been tried and convicted of the same offense, and that the instruction is unfair. We find no error in this instruction. The witness Johnson had made a like confession of guilt, but in his testimony he had said that, when, he and appellant had arrived at Woodland Park, they tasted the contents of the containers and found it to be only colored water.
It would seem that the instruction was called for and was, if anything, favorable to the appellant. The jury was properly advised that it should not consider any extra judicial statement made by Johnson as proof of the ultimate fact, but only in so far as it might affect his credibility as a witness.
We find no error, and judgment is affirmed.
Main, O. J., Mount, Holcomb, and Mackintosh, JJ., concur.