State v. Bennett

• Decision Date: 25 January 1913
• Citation: 129 P. 409,71 Wash. 673
• Court: Washington Supreme Court
• Parties: STATE v. BENNETT.

129 P. 409

71 Wash. 673

STATE v. BENNETT.

Supreme Court of Washington

January 25, 1913

Department 1. Appeal from Superior Court, Ferry County; W. P. Bell Judge.

Charles P. Bennett was convicted of embezzlement, and appeals. Reversed and remanded for new trial.

W. C. Stayt, of Colville, and James T. Johnson and Frank M. Allyn, both of Republic, for appellant.

John W Mathews, of Pullman, for the State.

CHADWICK J.

The appellant was convicted of the crime of embezzlement, and brings his case here on appeal.

Among the errors assigned, few are possessed of merit. During the progress of the trial, and while the jury was passing along the street in charge of two bailiffs, one of the jurors stopped and had some conversation with some bystanders. He then went into a lunch counter, which occupied a storeroom with a cigar store; the two being separated by a partition seven feet high, with an open door or archway between the two places. The juror ordered and ate his supper and then went out. The remaining jurors were taken to a hotel and were there given their supper. The absence of the juror was not immediately noticed. It would seem to us from the record that the juror finished his meal about the time his absence was noted. He was recovered by the bailiff, and from that time on the jury was kept together. He was away from 20 to 30 minutes and talked with several persons. On the next morning, the matter having come to the notice of the trial judge, the following colloquy ensued: 'The Court: It was reported to the court last evening that one of the jurors in this case separated for a few minutes from the other jurors. I think the juror was Mr. Edberg. Mr. Edberg, did you separate from the other jurors? Mr. Edberg: I did. I didn't understand that the jury was to stay together. The Court: You say you did not understand that the jury was to be kept together? Mr. Edberg: No. The Court: Where did you go after you separated from the jury? Mr. Edberg: Just went into a restaurant and had my supper. The Court: Just went into a restaurant and had your supper? Mr. Edberg: Yes, sir. The Court: Did you talk to any one? Mr. Edberg: No. Mr. Stayt: If your honor please, we object to this proceeding. The Court This is on the motion of the court. I shall take the privilege of questioning the juror. Did any one talk to you at that time? Mr. Edberg: No, sir. The Court: Did you speak to any one at all? Mr. Edberg: No, sir. The Court: What did you do; did you eat your supper at the restaurant? Mr. Edberg: Yes, sir. The Court: Then what did you do? Mr. Edberg: Stood out on the steps on the sidewalk and then went down the street to find the other jurors. The Court: Went down the sidewalk to find the other jurors? Mr. Edberg: Yes, sir. The Court: And didn't speak to any one from the time you left the jury until you again met them? Mr. Edberg: No. The Court: I want to instruct all the jurors that they are not to drop out or separate, even though the bailiffs should not see them. Every juror must understand that it is as much his duty to stay with the other jurors as it is the bailiffs' to see that he stays there, and each juror must consider it his duty, and it is your oath, as jurors, that you will remain together and not separate until the case is brought to an issue and you have brought in a verdict. The Court (to defendant's attorneys): If you wish to make any objections, you may do so. Mr. Stayt: We object to the whole procedure, your honor, and except to the action of the court. The Court: Exception allowed. Mr. Stayt: I guess we can proceed, your honor. Judge Neal will resume the stand.' Several of the jurors made affidavit, saying that the juror did not refer to any one who had talked about the case in his presence during his absence, nor did he say that he talked with any one. The offending juror made affidavit exonerating himself from all intentional fault.

It will be seen that the affidavits of the jurors are wholly insufficient to cure the error if we adhere to the rule that the separation of a juror in a felony case from the body of the jury is reversible error. It is not denied that the case will have to be reversed if the rule laid down by this court in the case of State v. Place, 5 Wash. 773, 32 P 736, and State v. Strodemier, 41 Wash. 159, 83 P. 22, 111 Am. St. Rep. 1012, is followed; but it is contended (a) that these cases are opposed to the general rule and should be overruled; that the dissenting opinions filed in each of them state the true rule of practice; (b) that this court has declared a different and true rule in the case of State v. Pepoon, 62 Wash. 635, 114 P. 449; and (c) that defendant did not sufficiently reserve an exception to the misconduct of the juror. While it is true that our decisions, when read in the light of certain texts followed by the citation of adjudged cases, may seem to be out of harmony with that practice which requires a showing of actual prejudice, yet, when viewed in the light of the history of the law and our statute, it seems to us that the cases criticised were correctly decided. Anciently a separation of the jurors was fatal in all cases. This rule was relaxed so that a separation was allowed in all civil cases and latterly in cases of misdemeanors. These distinctions found their way into our statutes (sections 346, 2159, Rem. & Bal. Code). These statutes, when construced...