State v. Aker

• Decision Date: 02 August 1909
• Court: Washington Supreme Court
• Parties: STATE v. AKER.

103 P. 420

54 Wash. 342

STATE v. AKER.

Supreme Court of Washington

August 2, 1909

Department 2. Appeal from Superior Court, Whatcom County; John A Kellogg, Judge.

Knute B. Aker was convicted of an offense, and he appeals. Affirmed.

Bugge &amp Swartz, for appellant.

George Livesey, J. W. Kindall, and Virgil Peringer, for the State.

PARKER J.

The defendant and appellant was charged with the crime of incest by information of the prosecuting attorney of Whatcom county and, upon a trial before the court and a jury, was found guilty, upon which judgment was rendered sentencing him to imprisonment in the state penitentiary, from which he appeals to this court. We will notice the facts so far as necessary in connection with our discussion of the several assigned errors.

During the progress of the trial, while the prosecuting witness was being cross-examined, and after she had been compelled to describe in detail the acts of the defendant constituting the crime, one of the jurors asked the court, 'Is it necessary to go through these details, your honor?' to which the court replied: 'The court is powerless to rule on testimony that is not objected to, gentlemen. The object of this trial is for the court and jury to listen to the testimony; the court has no discretion. Proceed with the examination.' Thereupon counsel for defendant asked a question of the witness which called for repetition of matters she had already testified to, when the prosecuting attorney objected to further cross-examination along that line, which objection the court sustained, allowing an exception to the defendant. Upon the opening of court the following morning the jury not being present, counsel for the defendant objected to these remarks of the juror and the court, and objected to further proceeding with the trial with the present jury, which objection the court overruled, allowing an exception. Upon the hearing of a motion for a new trial, for the purpose of showing the prejudicial effect of the question of the juror, and the remarks of the court in reply thereto, the affidavit of a juror was read, wherein he stated that he had heard the remarks of the juror, and of the court in reply thereto, and that 'the manner in which the court replied to the question so impressed the mind of this affiant of the guilt of the defendant that it became a fixed opinion which he found impossible to disregard, which remained in affiant's mind throughout the trial and until the rendition of the verdict in said cause.' It is contended that these remarks of the court were such as to convey to the minds of the jury the fact that the court was prejudiced against the defendant, and that he was entitled to a new trial on that account. This contention we think must be determined by the remarks of the juror and the court alone, uninfluenced by the statement of the other juror in his affidavit as to the effect upon him in arriving at the verdict, for the latter inheres in the verdict, and cannot be shown by the affidavit of a juror. As was said by this court in Marvin v. Yates, 26 Wash. 50, 60, 66 P. 131, 134: 'It is not for a juror to say what effect certain conduct may have had upon the verdict, because of the well-known principle that he cannot be heard to impeach the verdict; but the court must determine from the facts stated what effect, if any, the alleged misconduct had upon the verdict.' State v. Parker, 25 Wash. 405, 65 P. 776; Ralton v. Sherwood Logging Co. (decided by this court July 17, 1909) 103 P. 28. We are unable to see anything in the remarks of the judge in reply to the juror's question which indicates his view upon the question of the defendant's guilt or innocence, or upon any fact in issue in the case. The fact that the judge's remarks may have indicated to the minds of the jury that he considered that the cross-examination had proceeded far enough along that line, and the fact that such remarks may have suggested to the prosecuting attorney that he object to such further cross-examination, as is argued by defendant's attorney, is no indication of the judge's view upon the facts in issue, nor that he was prejudiced for or against the defendant. We do not think that these remarks of the court amounted to a comment upon the facts, nor was error committed in sustaining the objection of the prosecuting attorney in view of the extent to which the cross-examination by defendant's attorney had been allowed to proceed.

Upon hearing of the motion for new trial counsel for defendant sought to show by the affidavit of a juror that, at a recess during the progress of the trial while the prosecuting witness was giving her testimony, the jury was taken to the jury room, and while there a juror expressed in a positive manner his opinion that the defendant was guilty, and other jurors acquiesced in the statement, and expressed themselves in substance to the same effect. It is contended that this was such misconduct on the part of the juror as entitled the accused to a new trial. It is not claimed that the expressions of opinion were based upon any fact outside the testimony which had been given upon the trial, or that the juror stated any facts relating to the accused, or that the expressions of opinion were made within the hearing of any person other than the jurors themselves. We think this is not such misconduct as can be shown by the affidavit of a juror. It is clearly distinguishable from the case of State v. Parker, 25 Wash. 406, 65 P. 776, cited by appellant's attorneys, where the juror stated to his fellow jurors facts within his personal knowledge clearly outside the evidence.

Upon the hearing of the motion for a new trial coercion in arriving at the verdict was sought to be shown by the affidavit of a juror wherein the juror stated: 'That prior to said term of court the affiant informed the prosecuting attorney of said county that the defendant had for a long time done business with affiant at his store, and that before the said term of court affiant and the defendant had casually talked about said case; that affiant was surprised when the county attorney permitted him to remain as one of the jurors to try said cause; that during the course of said trial, in the jury room, other jurors learned from the affiant that he had talked with the defendant about the charge on which he was being tried; that after said cause was submitted to said jury, and the jurors had retired to deliberate upon their verdict, the affiant voted on two ballots in favor of acquittal; that thereupon other jurors, upon learning that affiant was casting his vote in favor of acquittal, threatened the affiant that, unless he ceased to do so, and joined with the other jurors in finding a verdict of guilty as charged, they would denounce him to the court for having consented to serve upon said jury after talking with the defendant about the charge brought against him; that the affiant, not being versed in the law, and thinking that possibly he had done something he should not have done, and made himself liable to penalties, thereupon voted with the other jurors on the next succeeding ballot.' We think this also relates to facts which cannot be shown by the affidavit of a juror. It is a matter inhering in the verdict, and to receive such statements from a juror is clearly to allow him to impeach his own verdict. 29 Cyc. 984; Thompson on Trials, § 2618.

It was claimed that there was misconduct on the part of the bailiff having the jury in charge during their deliberation such as...