State v. Bauers

Decision Date29 August 1946
Docket Number29820.
Citation172 P.2d 279,25 Wn.2d 825
CourtWashington Supreme Court

Department 2

Thomas F. Bauers was convicted for second-degree murder, and he appeals.

Appeal from Superior Court, King County; James B. Kinne, judge.

Henry Clay Agnew, of Seattle, for appellant.

Lloyd Shorett and Max R. Nicolai, both of Seattle, for respondent.

BEALS Chief Justice.

This is the second appeal in this cause, which was first Before us on appeal by the state from an order of the superior court granting a new trial. The order appealed from was reversed by this court, State v. Bauers, 23 Wash.2d 462, 161 P.2d 139.

Appellant was charged with the crime of murder in the first degree; his trial resulted in his conviction of the crime of murder in the second degree. From this judgment, and sentence thereon he has appealed to this court.

Appellant's wife, Zona Bauers, died as the result of a would inflicted upon her by a bullet discharged from a rifle in the hands of appellant, his sister also touching the gun. The charge was predicated upon the theory that appellant discharged the rifle with premediated design to cause the death of his wife. Appellant claimed that the rifle was accidentally discharged while he was examining it and explaining its mechanism to his sister.

After receipt of the verdict, appellant moved for arrest of judgment, or, in the alternative, for a new trial, basing the latter motion upon five of the statutory grounds, including error of law occurring at the trial and excepted to by appellant. The trial court denied the motion in arrest of judgment, but granted the motion for a new trial upon two grounds specifically set forth in the order. From this order the state appealed. Appellant prosecuted no cross-appeal. This court held, State v. Bauers, supra, that the grounds stated by the trial court in the order granting a new trial were insufficient to support the order, and reversed the same, giving no directions covering further proceedings in the case.

After the cause had been remitted to the superior court appellant's counsel objected to the entry of judgment and imposition of sentence until the trial court had passed upon the other grounds for a new trial upon which appellant's motion had been based, counsel contending that his motion for a new trial was still pending save as to the specific grounds upon which it had been granted.

After argument and discussion between the court and counsel, the following occurred 'The Court: If there is any question about the motion for a new trial, it is denied. We considered the errors, and the errors were argued Before , and if you want a separate order I will sign one.

'Mr. Agnew: In what form, Your Honor? That is, will you give me recitals to the effect that you do it because you believe----

'The Court: (Interposing) That the order did not pass upon the other errors which you are now urging. When we passed upon this matter I assumed, of course, that the order would mean that it was denied as to all grounds except to those stated granting the same, granting a new trial, because of certain specific things. That is the only thing we argued and considered.'

Thereafter, the court entered the judgment and sentence from which this appeal is prosecuted.

Appellant assigns error upon the failure of the trial court '* * * to set forth in his order granting the motion for new trial his reasons for such ruling and in attempting to show such ruling by reference to an oral opinion.'

Error is also assigned upon the admission of the testimony of a witness, appellant contending that the witness testified only to her conclusions.

In his third asignment of error, appellant contends that the trial court erred in permitting, over objection, certain witnesses to testify concerning statements made by the deceased in appellant's presence.

On this appeal appellant contends that the judgment entered against him should be reversed with instructions to grant appellant a new trial.

Respondent moves to dismiss the appeal upon the ground that the questions now presented Before this court by appellant were either specifically raised or could have been presented on the state's appeal from the order granting a new trial, State v. Bauers, supra, respondent contending that under the doctrine of res judicata all questions which appellant now seeks to argue Before this court have been by this court, in fact or in law, determined against him by the decision on the prior appeal.

In the recent case of Larson v. City of Seattle, 25 Wash.2d 291, 171 P.2d 212, this court, by an En Banc decision, considered State v. Bauers, supra, and directly overruled that case and the case of Grant v. Huschke, 70 Wash. 174, 126 P. 416, reaffirming the rule laid down in the case of Rochester v. Seattle, R. & S. R. Co. 75 Wash. 559, 135 P. 209, 210, in which the court held that

'* * * where, upon the consideration of a motion for a new trial, the trial court enters an order granting the motion upon a specific ground or for a specific reason stated, and the adverse party appeals, the party seeking to sustain the order may urge in this court all the grounds which were covered by his motion and is not limited to the specific ground or reason upon which the trial court based the order.'

In the Rochester case, the court continued by stating 'A second appeal will not be entertained.'

In view of the fact that this court did not follow the rule above referred to in deciding the first appeal in the case at bar and has now overruled the opinion in that case in the particular referred to, we shall consider in this case those questions argued by appellant upon this second appeal in connection with the other grounds upon which appellant sought a new trial Before the superior court.

The opinion of this court reversing the order of the superior court granting a new trial on appellant's motion simply reversed that order without any direction to the trial court to enter judgment upon the verdict of the jury. When the case again came Before the trial court, appellant argued that his motion for a new trial upon grounds other than those upon which the order granting a new trial had been based was still Before the court, the order granting a new trial having gone no farther than to grant the new trial upon the grounds specified therein. The superior court was then free to enter any order upon the motion for a new trial not inconsistent with the decision of this court reversing the order as incorrect upon the grounds specified therein. 3 Am.Jur. 729, title Appeal and Error, § 1233; Kolatch v. I. Rome & Sons, 137 Wash. 268, 242 P. 38; Godefroy v. Reilly, 140 Wash. 650, 250 P. 59; Rousseau v. Rosche, 158 Wash. 310, 290 P. 806; Stusser v. Gottstein, 187 Wash. 660, 61 P.2d 149.

After argument, the trial court expressly denied the motion for a new trial.

This case is unusual in that, after the decision on the first appeal, this court overruled the opinion, in part, prior to submission here of the second appeal.

It must now be determined to what extent the decision of this court upon the first appeal settled the law of the case.

In the case of Davis v. Davis, 16 Wash.2d 607, 134 P.2d 467, 468, we said:

'This court from its early days has been committed to the rule that questions determined on appeal or questions which might have been determined had they been presented will not again be considered on a subsequent appeal in the same case. [Citing cases.]'

The principle was again recognized in the case of Gray v. Wikstrom Motors, 18 Wash.2d 795, 140 P.2d 497.

Relying upon several of the authorities cited, respondent, in support of the motion to dismiss this appeal, argues that the questions raised by appellant's assignments of error, presenting questions of law, or practice, either inhered in the previous appeal or could have been presented by a cross-appeal, or simply by argument.

Respondent's position is well taken as to appellant's first assignment of error, supra.

In our previous opinion in this case, we said:

'Although respondent suggests that reference to the court's oral decision will disclose that the order was made in the exercise of the court's discretionary power, we think the order is clearly one based upon specific grounds, the essence of which are: * * * Reference to the oral decision can add nothing to the order. [Citing cases.]'

As to the second and third assignments of error presented by appellant on this appeal, supra, based upon alleged erroneous rulings of the trial court in admitting evidence over appellant's objection, respondent contends that these matters either should have been presented on the first appeal, supported by a cross-appeal by appellant, or should have been argued upon the record as made, and that upon the present state of the record these questions are foreclosed by the prior opinion.

In 5 C.J.S., Appeal and error, § 1826, page 1281, is found the following taxt:

'A party who fails to urge assignments of error on a cross appeal, complaining of errors when existing, may be precluded from presenting those errors on a subsequent appeal.

'Where, on an appeal or review, a party fails to prosecute a cross appeal or to urge assignments of error which might have been effectively presented, he may be precluded from such prosecution or presentation on a subsequent appeal.'

In Allen v. Schweigert, 113 Ga. 69, 38 S.E. 397, and Chicago, I. & L. R. Co. v. City of Bloomington, 182 Ind. 236, 105 N.E. 561, questions concerning the right of a party whose motion for a new trial had been granted to discuss on appeal reasons for granting the new trial other than those favorably considered by the trial court are discussed.

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