State v. Crotts

• Decision Date: 10 March 1900
• Citation: 22 Wash. 245,60 P. 403
• Parties: STATE v. CROTTS.
• Court: Washington Supreme Court

60 P. 403

22 Wash. 245

STATE v. CROTTS.

Supreme Court of Washington

March 10, 1900

Appeal from superior court, Pierce county; W. H. H. Kean, Judge.

Joseph Crotts was convicted of manslaughter, and from the judgment he appeals. Reversed.

Emmett N. Parker and B. A. Crowl, for appellant.

Geo. H. Walker, Pros. Atty., for the State.

DUNBAR J.

The defendant was tried on an information charging him with the crime of murder in the first degree, and upon the cause being submitted to the jury a verdict was returned finding him guilty of manslaughter. Judgment was entered, and an appeal is brought here on errors alleged to have been committed by the court.

The first error alleged is the action of the court in asking leading questions of the witnesses, and asking them in such a way as to violate section 16, art. 4, of the constitution which provides that judges shall not charge juries with respect to matters of fact, nor comment thereon. In this case, while the witness Strachan was relating circumstances attending the affray, and during the crossexamination by defendant's counsel, the court interposed as follows: 'Q. When you raised your cue that time and threatened the deceased, and commanded him to put down the dipper, you say that he threw it down. Now, do you think that was done in obedience to that command? A. Yes sir. Q. He seemed at that time to subside? A. Yes, sir. Q. And yield? A. Yes, sir. Q. And had apparently consented to stop his quarreling? A. Yes, sir. Q. And at that time, then the affray seemed to have the appearance of being at an end, as far as he was concerned? A. Yes, sir.' Again, when counsel for the defense was cross-examining the witness Patton, who had testified in detail as to how the deceased was acting at the time the fatal shot was fired, the court interposed the following questions: 'Q. Was Mr. Snell at that time, or did he have the appearance of, giving up the trouble? A. Yes, sir.' At this point counsel for defendant interposed the following objection: 'If your honor please, we desire to object. I believe we have the right to object to the court's asking a question if we believe it is immaterial. We ought to have objected to similar questions yesterday, because--Well, our ground simply is that they are leading, and that they are leading away from the interests of the defendant. They are leading in the interests of the state. I don't say but what it is proper for the court sometimes, and very often, to ask questions, and I am not objecting to it on that ground, but I object to it just for the same reason as if the prosecuting attorney was asking that. Court: As I understand the rule, the court may ask any questions that it sees fit, if it be leading or otherwise. Mr. Parker: Yes, sir; I think it has, too; but I think that is governed by the same rules. Court: Objection overruled. Mr. Parker: We ask an exception. Court: Exception noted. Q. You answered the question? A. Yes, sir. By Mr. Farley (for the state): Q. So the jury can hear what was the answer to the question? A. I said he was not in the act of going any further in the struggle. He seemed to be giving up the fight.' The defendant in this case was relying upon selfdefense, so it will be seen that the interrogatories of the court were concerning material questions involved in the case.

It is urged by the respondent that, as no exceptions were taken by the defendant to the questions propounded by the judge, at the time they were propounded, under the general rule, and under the rulings of this court, no basis for a determination of those questions in this court has been laid. It is true that the ordinary rule is in consonance with the ruling, frequently announced by this court, that alleged errors will not be reviewed without they are excepted to at the time they are committed; but we do not think the error alleged in this instance falls within the rule, nor that the rule should be enforced when its observance would tend to destroy the very object for which the objection is ordinarily made. An attorney is placed in a delicate position under such circumstances. It is dangerous for him to enter into a controversy with the court in relation to matters and proceedings which the court itself is instituting. The court should not place counsel in this position without it becomes absolutely necessary for the furtherance of justice. In this case the defendant's counsel had to choose between the probability, or at least the possibility, of prejudicing his case in the minds of the jury by reason of his expressed opposition to the course pursued by the court, or else lose the benefit of an objection which he was entitled to make. We do not think counsel should be compelled to imperil their cause in the lower court for the purpose of protecting their rights in the appellate court. Besides, in this case, upon the second effort of the court in this direction, counsel, probably feeling that it could not in safety be tolerated longer, objected to the questions propounded by the court, and suggested the error which, in his judgment, the court had committed the day before, when his objections were overruled, and he was cavalierly informed that the court could ask any questions that it saw fit; and this controversy was especially called to the attention of the jury by the interposition of the prosecuting attorney, who insisted that the question asked by the court should be answered, so the jury could hear it.

Again where the constitutional right has been invaded, it has been held by this court that no failure of objection or exception should stand in the way of considering errors based on the violation of such provisions. In Linbeck v. State, 1 Wash. St. 336, 25 P. 452, it was held that, where ...