State v. Davis

• Decision Date: 28 November 1952
• Docket Number: No. 32034,32034
• Citation: 250 P.2d 548,41 Wn.2d 535
• Court: Washington Supreme Court
• Parties: STATE, v. DAVIS.

Page 535

41 Wn.2d 535

250 P.2d 548

STATE, v. DAVIS.

No. 32034.

Supreme Court of Washington, Department 2.

Nov. 28, 1952.

Rehearing Denied Jan. 23, 1953.

J. W. Kindall and Lester C. Voris, Bellingham, J. S. Kurtz and R. F. Atwood, Jr., Bellingham, for appellant.

Tom A. Durham and Jack Rowles, Bellingham, for respondent.

HAMLEY, Justice.

Weaver O. Davis was charged with the crimes of assault in the second degree and carrying a concealed weapon without a license. The trial resulted in a verdict of guilty on both counts. From the judgment entered upon the verdict, defendant appeals.

The first three assignments of error, relating to asserted comments upon the evidence by the trial judge, in violation of Art. IV, § 16, of the state constitution, read as follows:

'1. Trial Court erred when, upon questioning appellant, the Court asked leading and suggestive questions calculated to discredit appellant in the eyes of the jury.

'2. Trial Court erred in asking leading questions of appellant in such a way as to convey to the jury the Court's opinion of what the evidence tended to show.

'3. Trial Court erred in asking leading questions of appellant in such a way as to constitute a comment on the evidence.'

The record indicates that counsel for appellant (who were not counsel representing appellant on this appeal) made no objection to the asserted comments at the time they were made. No motion for a new trial was filed and there was therefore no assignment of error directed to the failure to grant such a motion. Respondent argues that, having failed to call these asserted errors to the attention of the trial judge by means of a motion for a new trial, appellant may not now obtain a review of this question.

Appellant urges, in reply, that the only possible ground for a new trial which could have been invoked is that set out in Rem.Rev.Stat. § 2181(5), RCW 10.67.020(5), i. e., 'Error of law occurring at the trial and excepted to by the defendant;' that the particular kind of error here in question is not of a kind which required that objections be made at the time the comments on the evidence took place; and that since no objection was taken or needed to be taken, the one possible ground for asking for a new trial was in this case unavailable.

Appellant is correct in saying that where the error relied upon is an asserted comment on the evidence by the trial judge, it is not necessary for the aggrieved party to make an objection in order to reserve the question for appellate review. State v. Crotts, 22 Wash. 245, 60 P. 403; State v. Jackson, 83 Wash. 514, 145 P. 470; Eckhart v. Peterson, 94 Wash. 379, 162 P. 551. Contrary views, expressed in Halverson v. Seattle Electric Co., 35 Wash. 600, 77 P. 1058; Manhattan Building Co. v. Seattle, 52 Wash. 226, 100 P. 330; and Dennis v. McArthur, 23 Wash.2d 33, 158 P.2d 644, should be disregarded as dictum, inasmuch as in all of those cases we held that there had been no comment on the evidence.

The reason why an aggrieved party in such instances is excused from making an objection to the alleged misconduct, is that to do so in the presence of the jury would itself tend to prejudice such party in the eyes of the jury, and thus defeat the very object for which the objection is ordinarily made. State v. Crotts, supra.

We do not agree with appellant, however, that the fact that he was excused from making an objection at the time the incident arose, also excused him from raising the question on a motion for a new trial.

The office of the motion for new trial is to give the trial court an opportunity to pass upon questions not before submitted for its ruling. Dubcich v. Grand Lodge A. O. U. W., 33 Wash. 651, 74 P. 832. Hence, those errors which could only have been raised on motion for new trial will not be considered on appeal, if not raised by this motion. Harris v. Van De Vanter, 17 Wash. 489, 50 P. 50; Migge v. Northern Pacific R. Co., 75 Wash. 197, 134 P. 815; Fleming v. Red Top Cab Co., 133 Wash. 338, 233 P. 639.

This is but a corollary to the rule that questions which are not raised in any manner before the lower court will not be considered on appeal. In re Corneliusen's Estate, 182 Wash. 488, 47 P.2d 843; Unemployment Compensation Dept. v. Hunt, 17 Wash.2d 228, 135 P.2d 89. For examples of the application of this rule where a constitutional question was presented, see North River Boom Co. v. Smith, 15 Wash. 138, 45 P. 750; Unemployment Compensation Dept. v. Hunt, supra; State ex rel. Jones v. Byers, 24 Wash.2d 730, 167 P.2d 464; State ex rel. York v. Board of Commissioners, 28 Wash.2d 891, 184 P.2d 577, 172 A.L.R. 1001. An exception is made, of course, where the objection is that the superior court had no jurisdiction of the cause, or that the complaint does not state sufficient facts to constitute a cause of action. Rule on Appeal 43, as amended, 34A Wash.2d 47, and pocket part.

Taking cognizance of the reasons behind the rule referred to above, it follows, we believe, that, although appellant would have been privileged to raise the question by an objection made during the trial, since he was not required to do so and did not do so, it was his duty to present the question by way of a motion for a new trial.

Appellant's contention that there is no specified ground for a new trial applicable to this kind of error where no objection has been made, is without merit. He is relying upon Rem.Rev.Stat. § 2181, RCW 10.67.020, which sets out six grounds for such a motion in criminal actions. This statute...