State v. O'Donnell, 26592.
Decision Date | 16 September 1937 |
Docket Number | 26592. |
Citation | 191 Wash. 511,71 P.2d 571 |
Court | Washington Supreme Court |
Parties | STATE v. O'DONNELL et al. |
Appeal from Superior Court, King County; Robert M. Jones, Judge.
Joseph O'Donnell and another were convicted of murder, and they appeal.
Reversed and remanded for new trial.
John F Garvin, Jacob Kalina, Roy H. Bullack, Andrew L. Ulvestad, J E. Bakken and J. P. Tonkoff, all of Seattle, for appellants.
B. Gray Warner, John M. Schermer, and Harry A. Bowen, all of Seattle for the State.
On the night of November 26, 1935, two police officers of the city of Seattle were shot to death in a tavern outside the north limits of the city. They had gone to the tavern in response to information that it was being burglarized. Subsequently, the appellants, together with Lester Rorick, were charged, by information in two counts, with the crime of murder in the first degree, in that, while in the commission of burglary, they fired the gunshots resulting in the death of the two officers.
Rorick pleaded guilty to the charge and testified as a witness for the state at the trial of the appellants. The jury returned verdicts finding the appellants guilty on both counts, as charged in the information. A special verdict recommended the death penalty for Joseph O'Donnell; no recommendation was made as to John O'Donnell.
After the denial of motions in arrest of judgment and for new trials, the court entered judgments sentencing John O'Donnell to the state penitentiary for the term of his natural life and imposing the death penalty on Joseph O'Donnell, in accordance with the recommendations of the jury.
The evidence was sufficient to sustain the jury's verdict, and the judgment should be affirmed, unless, as contended by the appellants, prejudicial errors were committed by reason of which they were denied the fair and impartial trial guaranteed to them by law.
The first and controlling error assigned is gross misconduct of the prosecuting attorney in his opening statement to the jury. In the course of this statement, the prosecutor said: 'Incidentally, the evidence will show both of these men have records for burglary and robbery--prior records, and they have both served time in penitentiaries. * * *, in view of the other testimony, in view of the other burglaries and the records that will show from the evidence, the state is going to ask you to hang these two men.'
These remarks of the prosecuting attorney, made at the initial stage of the trial, were highly improper and, beyond question, prejudicial to the appellants, so much so that, whether guilty or innocent, they could not thereafter have had a fair trial.
'It may be that the defendant is guilty. On that we express no opinion. It must be remembered, however, that, 'though unfair means may happen to result in doing justice to the prisoner in the particular case, yet, justice so attained, is unjust and dangerous to the whole community.'' State v. Pryor, 67 Wash. 216, 121 P. 56, 58; citing Hurd v. People, 25 Mich. 405.
The prosecutor's remarks violated certain principles, basic in our system of criminal procedure. First, he placed the appellants' character in issue in advance of their taking the witness stand to testify in their own behalf; second, he asked the jury to hang the appellants, not alone for the specific offenses with which they were charged, but 'for the other burglaries and the records that will show from the evidence'; and, third, by charging the appellants with the commission of collateral crimes, he placed them in a position where they had either to take the witness stand or rest under the imputation of those crimes--this being, in effect, a specie of compulsion to testify in violation of the immunity granted by the Federal and State Constitutions. If the court had permitted the state to introduce evidence tending to show the commission by the appellants of other felonies, the error of the procedure would not be questioned, nor would the court hesitate to grant a new trial.
While the prosecuting attorney was not testifying as a witness under oath, his statements were no less injurious to appellants. The office of prosecuting attorney is quasi judicial. The incumbent is elected by the people to perform the highly responsible duties of the office in the belief that he possesses the high standard of character deemed necessary to the proper performance of his functions; his declarations to the jury are not taken lightly as the words of a mere advocate, but as having the prestige of authority. And so the law holds him to a high degree of fairness in presenting the state's case against persons charged with crime.
Commonwealth v. Nicely, 130 Pa. 261, 18 A. 737.
Biemel v. State, 71 Wis. 444, 37 N.W. 244, 247; and cited with approval in State v. Montgomery, 56 Wash. 443, 105 P. 1035, 134 Am.St.Rep. 1119, 21 Ann.Cas. 331.
The rule which excludes evidence of the bad character of the accused is grounded on the policy of avoiding the uncontrollable and undue prejudice, and possible unjust condemnation, which such evidence might induce.
Speaking of the rule that the defendant's bad character may not be offered against him, Wigmore says: 1 Wigmore on Evidence (2d Ed.) § 57, p. 272.
This policy of the law is referred to in State v. Devlin, 145 Wash. 44, 258 P. 826, 829, as follows:
Judge Peckham, in People v. Shea, 147 N.Y. 78, 41 N.E. 505, 511, says:
Putting the characters of the accused in issue by charging them with the commission of crimes other than the one for which they were being tried, in effect, as we have Before said, required them to take the witness stand or rest under the imputation of having committed the collateral crimes with which they were charged. This was doing what we condemned in principle in the case of State v. Jackson, 83 Wash. 514, 145 P. 470, 471, where the prosecuting attorney, in the presence of the jury, made demand upon the defendant for the production of certain documents. Holding this to be reversible error, the court said:
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State v. Torres
...guilty of others crimes not charged in the information. State v. Ranicke, 3 Wash.App. 892, 479 P.2d 135 (1970). In State v. O'Donnell, 191 Wash. 511, 71 P.2d 571 (1937), the prosecutor, in opening, stated that the evidence would show that the defendant had a prior record. The court said tha......
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...excused the failure to object or request instructions because no instruction could have cured the prejudicial error, State v. O'Donnell, 1937, 191 Wash. 511, 71 P.2d 571; State v. Smith, 1937, 189 Wash. 422, 65 P.2d 1075, or held that an instruction actually given did not cure the prejudici......
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