State v. Dalton

• Decision Date: 27 July 1906
• Citation: 43 Wash. 278,86 P. 590
• Parties: STATE v. DALTON.
• Court: Washington Supreme Court

86 P. 590

43 Wash. 278

STATE v. DALTON.

Supreme Court of Washington

July 27, 1906

Appeal from Superior Court, Spokane County; Miles Poindexter, Judge.

James Dalton was convicted of murder, and appeals. Affirmed.

John E. Blair and Edgar G. Riste, for appellant.

R. M Barnhart, Fred C. Pugh, and A. J. Langhon, for the State.

MOUNT C.J.

The appellant was convicted of the crime of murder in the first degree. He appeals from a judgment imposing the death sentence. The errors alleged are of the court, in refusing the sequestration of witnesses, in the reception and rejection of certain evidence during the trial, and in denying a motion for a new trial. Certain affidavits used on the motion for a new trial are attached to the transcript certified by the clerk. These affidavits were not made a part of the statement of facts, and are not certified by the trial judge. Respondent moves to strike these affidavits. This motion must be sustained under repeated rulings of this court. State v. Wood, 33 Wash. 290, 74 P. 380, and cases cited. State v. Yandell, 34 Wash. 409, 75 P 988.

Twenty-six errors are alleged in the brief of appellant. It will not be necessary to discuss all of these assignments separately. We shall refer to such as are relied upon by the appellant and presented by the record, after striking the affidavits above mentioned. After the jury had been impaneled, and after the prosecuting attorney had made his opening statement to the court and jury, appellant's counsel requested that the witnesses for the state be excluded from the courtroom. The prosecuting attorney stated that he did not see why the rule should be invoked, and requested that Mr. Thompson be excused from the rule. The request of appellant was thereupon denied. Counsel for appellant then said: 'I think that the conduct of the case so far warrants that these witnesses do not hear each other's testimony. It does not apply to all of them, but it does apply particularly to officer Thompson. Notwithstanding the fact that your honor instructs that they shall not give any information or consult with each other concerning the evidence given, I think it is an extraordinary reason, not only to the charge, but the conduct of the parties in this case, particularly officer Thompson, that they be excluded--he more than the rest.' The court again denied the application. Appellant now insists that his right to have the witnesses excluded was an absolute right, and that, if the right was discretionary, the court abused its discretion. The weight of authority seems to be that the exclusion of witnesses from a courtroom during the trial is a matter within the discretion of the trial court. 1 Bishop, New Cr. Proc. §§ 1188-1190; 1 Greenleaf on Evidence (16th Ed.) § 432; 2 Elliott on Evidence, § 798; Abbott's Trial Brief, Cr. Cas. p. 303; 3 Wigmore on Evidence, § 1839; 12 Cyc. p. 546, and cases cited. Elliott's late work on Evidence states the rule as follows: 'That order is a matter of discretion for the court, and by the weight of judicial decision a party is not entitled to it as a matter of strict right, yet it is rarely withheld. It tends to promote justice, and should be granted in all proper cases, and the exclusion of witnesses in the exercise of the court's discretion will only be reviewed on showing that it has been abused. In some states it may be claimed as a right. Usually all witnesses on both sides are excluded when such an order is asked by one of the parties, but it is held that the court may make exceptions as to certain witnesses when making an order.' 2 Elliott on Evidence, § 798. This court has followed the rule as above stated. State v. Mann, 39 Wash. 144, 81 P. 561; Griffith v. Ridpath, 38 Wash. 540, 80 P. 820; State v. Armstrong, 37 Wash. 51, 79 P. 490. Nor do we think the court abused its discretion in this case. We find no good reason offered to the trial court for the sequestration. When counsel for appellant stated his reason to the court for asking the order, he said: 'I think that the conduct of the case so far warrants that these witnesses do not hear each other's testimony. It does not apply to all of them, but it does apply particularly to officer Thompson.' The record before us is absolutely silent as to any conduct of the case so far except as to the fact that the jury had been selected, and in the opening statement made. None of the details are shown, nothing of the character of the witnesses, or of their testimony, and nothing from which we can say that the court abused its discretion, except the mere fact of refusal to exclude the witnesses. Furthermore, the request seems to be directed particularly at officer Thompson, whose presence had been requested by the prosecutor. So far as we know this witness may have been the one upon whom the prosecutor was relying for information as to what the other witnesses would testify. He may have been the real prosecuting witness, whose presence was necessary to the prosecuting attorney; in which event the court was clearly justified in refusing to exclude him; and since the reason did not apply to other witnesses, the court, of course, was not required to exclude them.

A witness by the name of John Krum was called on the part of the state. This witness was a boy, 16 years of age. After stating that he was acquainted with the defendant, and had been with defendant in the vicinity of Newport in Stevens county for several days prior to the murder; that he came from Newport to Spokane with defendant, and was in a room adjoining defendant's room at the time defendant was arrested, and, after stating that he had several conversations with defendant after the arrest, he was asked to relate certain of these conversations. The witness persistently refused to do so. The court then permitted the prosecuting attorney to ask him leading questions, and admonished the witness that it was his duty to answer them and that if he did not answer, punishment would be inflicted upon him. The judge then sought to have the witness answer, but he still refused. In the course of the examination, which evidently consumed much time, the judge said to the witness: 'Cast your eyes to the jury and stop looking at the defendant. * * * I notice, young...