State v. Adamo

• Decision Date: 14 February 1924
• Docket Number: 18294.
• Citation: 223 P. 9,128 Wash. 419
• Court: Washington Supreme Court
• Parties: STATE v. ADAMO.

223 P. 9

128 Wash. 419

STATE v. ADAMO.

No. 18294.

Supreme Court of Washington

February 14, 1924

Department 2.

Appeal from Superior Court, Spokane County; Oswald, Judge.

Luigi Adamo was convicted of murder, and appeals. Affirmed.

Corkery & Corkery and Tustin & Chandler, all of Spokane, for appellant.

Chas H. Leavy, Edward M. Connelly, and M. E. Jesseph, all of Spokane, for the State.

BRIDGES J.

The defendant has twice been convicted on the charge of murder. On his appeal from the first conviction we reversed the sentence and directed a new trial. State v. Adamo, 120 Wash. 274, 207 P. 7. At a second trial he was again convicted and has again appealed. Sufficient of the facts necessary to the consideration of the questions now raised may be found in our previous opinion.

1. The first assignment of error grows out of the following facts During the trial and after the jury had been made up and some of the testimony introduced, the bailiff in charge of the jury found on the floor of the men's toilet in the jury room a newspaper report of the former trial. To this he called the attention of the trial court. After a conference between the court and counsel for both parties, it was understood that the court might interrogate the jury concerning their knowledge of this newspaper report, and if they answered that they knew nothing about it or had not read it there would be no objection to proceeding with the trial. Thereupon the court stated to the jury that a certain newspaper report of a former trial of the case had been found in the jury room, and asked if any juror had seen or read it. They answered in the negative. The trial then proceeded. After the verdict was rendered one of the jurors made an affidavit in support of a motion for a new trial to the effect that during the trial of the case, while he was in the attorney's room in the courthouse telephoning, he saw on the window sill the newspaper clipping in question; that at that time he noticed a headline to the effect that Adamo had been convicted and sentenced to ten years. He did not read the article, but may have seen more of the headlines. The top headline read: 'Convict Adamo killing Gracio. Second degree verdict. Ten years to life in pen.' The subheadlines were: 'Adamo makes no comment,' 'Discount self-defense plea,' 'Four ballots taken.' This juror during the progress of the trial informed another juror that he had seen the headlines of a newspaper article showing that the appellant had been convicted at a former trial, but the second juror was not further informed of the contents of the article nor did he see it. It is shown that the clipping was one which one of the appellant's attorneys had in his possession, and which he had given to a newspaper reporter pending the second trial, from which the latter might obtain such information as he desired concerning the former trial. How this article got into the jury room no one seems to know. The other jurors made affidavit to the effect that they did not see the article and knew nothing about it, and the juror who saw the article and the one who was told about its existence made affidavits that what they had learned from the article in no manner influenced them. The question is, Should the court have granted a new trial because of this situation.

As indicated above, the headlines of the newspaper article only pretended to give the results of the former trial. Neither they nor the article itself pretended to give any opinion concerning the guilt or innocence of the appellant, nor did they in any way attack him. It was apparently a fair report of the result of the first trial. We may not consider those portions of the jurors' affidavits to the effect that they were in no wise influenced by the article in question because jurors may not impeach their verdict in this way. State v. Parker, 25 Wash. 410, 65 P. 776; Maryland Casualty Co. v. Seattle Electric Co., 75 Wash. 430, 134 P. 1097; State v. Burke, 124 Wash. 632, 215 P. 31.

Jurors possess at least average intelligence and integrity. They are sworn to return a verdict in accordance with the evidence. They are instructed that they may not consider matters outside of the evidence. If this same juror had before the trial read the whole of this identical article, he would not have been disqualified as a juror. If the article had been an attack upon the appellant or had expressed opinions concerning his guilt or if it had been a grossly unfair statement of the former trial, then the court might presume prejudice. Such was the situation in People v. Stokes, 103 Cal. 193, 37 P. 207, 42 Am. St. Rep. 102, and Capps v. State, 109 Ark. 193, 159 S.W. 193. Even if all the members of the jury had read the whole of this newspaper article, we do not see how it could have influenced their verdict, unless we are to assume that jurors are unfit for the important duties imposed on them. As said by Judge Dunbar in State v. Pepoon, 62 Wash. 635, 114 P. 449:

'In addition, we must indulge some presumptions in favor of the integrity of the jury. It is a branch of the judiciary, and if we assume that jurors are so quickly forgetful of their duties of citizenship as to stand continually ready to violate their oath on the slightest provocation, we must inevitably conclude that a trial by jury is a farce and our government a failure.'

It has very generally been held by the courts that in civil cases the reading by one or more of the jurors, pending the trial, of a newspaper article purporting to give the result of a former trial is not ground for a new trial. Sherwood v. Chicago & W. M. Ry., 88 Mich. 108, 50 N.W. 101; Illinois Central R. R. v. Souders, 178 Ill. 585, 53 N.E. 408; Copeland v. Wabash Railway Co., 175 Mo. 650, 75 S.W. 106; Fort Worth & D. C. Ry. v. Hayes, 62 Tex.Civ.App. 369, 131 S.W. 416; Partello v. Missouri P. Ry. Co., 240 Mo. 122, 145 S.W. 55.

While in no criminal case have we found the exact question here involved, yet there are cases so closely analogous as to indicate that the rule in civil cases would be followed. People v. Fong Sing, 38 Cal.App. 253, 175 P. 911; State v. Sousa, 43 R.I. 176, 110 A. 603; State v. Crowley, 113 Me. 568, 94 A. 754; State v. Waitman, 42 S.D. 5, 172 N.W. 504; People v. Lubin, 190 A.D. 339, 179 N.Y.S. 691.

Our attention is called to the case of State v. McCormick, 20 Wash. 94, 54 P. 764, where we held that a new trial should be granted because with the consent of the court the bailiff was permitted to hand the juror two unopened letters. In State v. Pepoon, supra, we, in effect, repudiated the holding in that case.

Our attention is also called to State v. Strodemier, 41 Wash. 159, 83 P. 22, 111 Am. St. Rep. 1012, where we held that, because the bailiff, while the jury was out of the jury room and in his charge, took one of them into a public saloon, where they had a drink of intoxicating liquor, a new trial should be granted. This opinion was by a divided court. The basis of the conclusion which the court reached was apparently the improper conduct of the bailiff rather than that of the juror himself.

The granting of a new trial because of the alleged misconduct of jurors is in the discretion of the trial court, and we will not interfere, unless we are convinced that the discretion has been abused. Here we do not find any such abuse. As previously stated the courts seem to be practically unanimous that in civil cases misconduct such as is involved here is not cause for a new trial. If such conduct is not prejudicial in a civil case, it cannot be in a criminal case.

Persons charged with crime have an undoubted right to a fair trial before a fair jury, but it does not follow that a new trial must be granted because...