State v. Browder, 36252

Decision Date24 January 1963
Docket NumberNo. 36252,36252
Citation61 Wn.2d 300,378 P.2d 295
CourtWashington Supreme Court
PartiesThe STATE of Washington, Respondent, v. James Earl BROWDER, Appellant.

Daniel J. Riviera, Garvin, Ashley & Foster, Seattle, for appellant.

Charles O. Carroll, Pros. Atty., James E. Kennedy, Deputy Pros. Atty., Seattle, for respondent.

PER CURIAM.

James Earl Browder appeals from a judgment of conviction on multiple counts of forgery.

Appellant freely admitted at the trial, and in written briefs here, that he signed the name of Byron D. Hunt to checks on Hunt's bank account, but insisted the Hunt had authorized him so to do. 1 This Hunt emphatically denied. Hunt testified, however, that he had lost both his wallet and checkbook.

The court instructed:

'You are instructed that the adoption of another name or an assumed name is permissible if the purpose involved is an honest one. The burden is upon the defendant to show that he adopted the name for an honest purpose, or that he had used it for any length of time, or for a purpose other than to perpetrate the crime of forgery as charged in this case.'

To this instruction, the appellant's then counsel, but not his court-appointed counsel on appeal, took the following exception:

'Defendant excepts to Court's Instruction No. 7 1/2 on the ground that it constitutes a comment upon the evidence and assumes the existence of a fact which is in dispute, the question of whether or not the defendant ever adopted the name of another. We feel this will be highly prejudicial to the jury and is therefore improper.'

Here, the appellant assigns error to the quoted instruction as a comment on the evidence and as an improper statement of the burden of proof.

The exception to the instruction did not direct the trial court's attention to any contention that there was an improper statement of the burden of proof; neither was such claim made at any time during the trial or on the motion for a new trial. Under such circumstances, we cannot consider the defendant's assignment of error seeking to raise that issue. Miller v. Staton (1961), 58 Wash.2d 879, 365 P.2d 333; Owens v. Anderson (1961), 58 Wash.2d 448, 364 P.2d 14; State v. Cogswell (1959), 54 Wash.2d 240, 339 P.2d 465; Patterson v. Krogh (1957), 51 Wash.2d 73, 316 P.2d 103; Peerless Food Products Co. v. Barrows (1957), 49 Wash.2d 879, 307 P.2d 882; and State v. Lyskoski (1955), 47 Wash.2d 102, 287 P.2d 114.

The appellant makes a two-pronged suggestion that the quoted instruction violated Art. 4, § 16, 2 of the state constitution: i. e., that it was an evidentiary comment, and that it assumed a fact in dispute.

The appellant, both at the trial and here, freely admitted using an assumed name in the execution of the checks and in cashing them.

Our oft repeated interpretation of Art. 4, § 16, of the state constitution is that the assumption of admitted facts is not a comment on the evidence. State v. Cogswell, supra; State v. Phillips (1953), 42 Wash.2d 137, 253 P.2d 919; State v. Warwick (1919), 105 Wash. 634, 178 P. 977; and State v. Belknap (1906), 44 Wash. 605, 87 P. 934.

The second phase of the appellant's argument relative to the constitutional provision is that the trial court, by imposing the burden of proof on the appellant to show that he had the authority to sign the name of another, by inference told the jury that the state had proved all the elements of the crime.

Assuming, without deciding, that the court did improperly assign the burden of proof, we still cannot agree that there has been a comment on the evidence. This court has consistently held that, to be a comment on the evidence within Art. 4, § 16, of our state constitution, the jury must be able to infer from what the court said or did not say that he personally believed or disbelieved the testimony in question. State v. Reed (1960), 56 Wash.2d 668, 354 P.2d 935; State v. Myers (1959), 53 Wash.2d 446, 334 P.2d 536; State v. Rio (1951), 38 Wash.2d 446, 230 P.2d 308; State v. Clayton (1949), 32 Wash.2d 571, 202 P.2d 922; State v. Hart (1946), 26 Wash.2d 776, 175 P.2d 944; and State v. Brown (1943), 19 Wash.2d 195, 142 P.2d 257. We do not believe that a jury of laymen could infer from this instruction any belief or disbelief of testimony on the part of the court.

Appellant also claims error in the refusal of the trial court to grant his request for a free complete statement of facts. The trial court did certify a statement of facts which contains all of the record in the trial court necessary to review all of the claimed trial errors suggested by the appellant. The record discloses that the trial court, in passing upon this request, exercised the utmost good faith and fully conformed to the requirements of the equal protection of the fourteenth amendment to the federal constitution. The court definitely had in mind Griffin v. People of State of Illinois (1956), 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891; Eskridge v. Washington State Board of Prison Terms and Paroles (1958), 357 U.S. 214, 78 S.Ct. 1061, 2 L.Ed.2d 1269; and In re Woods v. Rhay (1959), 54 Wash.2d 36, 338 P.2d 332. The appellant does not argue that the trial court misconceived the effect of...

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    • September 14, 2020
    ...v. Elmore, 139 Wash.2d 250, 275, 985 P.2d 289 (1999) ).89 Egede-Nissen, 93 Wash.2d at 139, 606 P.2d 1214 (quoting State v. Browder, 61 Wash.2d 300, 302, 378 P.2d 295 (1963) ).90 Appellant's Reply Br. at 18.91 RP (July 9, 2018) at 1166.92 Appellant's Br. at 44.93 In re Marriage of Zigler & S......
  • Koker v. Armstrong Cork, Inc.
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    ...the testimony in question.' " Egede-Nissen v. Crystal Mt., Inc., 93 Wn.2d 127, 139, 606 P.2d 1214 (1980) (quoting State v. Browder, 61 Wash.2d 300, 302, 378 P.2d 295, cert. denied, 375 U.S. 869, 84 S.Ct. 93, 11 L.Ed.2d 96 State v. Hawkins, 53 Wash.App. 598, 604, 769 P.2d 856 (1989). The app......
  • State v. Louie
    • United States
    • Washington Supreme Court
    • April 7, 1966
    ...expressions of the trial judge that he personally believes or disbelieves the evidence relative to a disputed issue. State v. Browder, 61 Wash.2d 300, 378 P.2d 295 (1963), and cases cited. Usually, the prohibited inference takes form and arises from an overt, rather than a passive, act or e......
  • State v. Becker
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    • May 1, 1997
    ...what the court said or did not say a personal belief regarding the testimony in question or the merits of the case. State v. Browder, 61 Wash.2d 300, 302, 378 P.2d 295, cert. denied, 375 U.S. 869, 84 S.Ct. 93, 11 L.Ed.2d 96 (1963); State v. Foster, 91 Wash.2d 466, 481, 589 P.2d 789 (1979); ......
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