State v. Elder

• Decision Date: 22 September 1924
• Docket Number: 18597.
• Citation: 130 Wash. 612,228 P. 1016
• Court: Washington Supreme Court
• Parties: STATE v. ELDER.

228 P. 1016

130 Wash. 612

STATE v. ELDER.

No. 18597.

Supreme Court of Washington

September 22, 1924

Department 2.

Appeal from Superior Court, Whatcom County; Brown, Judge.

William Elder was convicted of carnal knowledge and abuse of a female under 15 years of age, and he appeals. Affirmed.

Bryan &amp Sampley, of Bellingham, for appellant.

Edwin Gruber and E. D. Kenyon, both of Bellingham, for the State.

FULLERTON J.

The appellant, William Elder, was found guilty by the verdict of a jury of carnally knowing and abusing his stepdaughter, a child under the age of 15 years. For a reversal of the judgment of conviction pronounced against him, he makes some 67 assignments of error. These, we think, do not require notice seriatim. They can be grouped under more general heads, and it is in that manner we shall consider them.

A Mrs Dean was called as a prospective juror, and examined as to her qualifications to sit as such. At the conclusion of the examination she was challenged for cause by the appellant which challenge the court denied. The impaneling of the jury was proceeded with until the appellant had exhausted all but one of his peremptory challenges. He then renewed his challenge for cause againt this particular juror, stating to the court that he wished to exercise his remaining challenge upon another juror who was in the jury box, which he could not do if Mrs. Dean was allowed to remain before the jury. The court again refused to excuse the juror, whereupon the defendant excused her under his remaining challenge. He urges in this court that the juror was subject to challenge for cause, and that the effect of the ruling of the court was to deny to him the number of peremptory challenges accorded to him by the statute. But in our opinion the rulings of the court were without error. The answers of the juror to the questions propounded to her show her to be both frank and intelligent. She stated that a woman had detailed to her certain of the purported facts of the case, but that she did not know any of the parties to the transaction, had never before met the woman mentioned, and that she then had no opinion, fixed or otherwise, as to the guilt or innocence of the defendant. Certain of her answers, when separated from their settings, may seem contradictory of this latter statement, but a reading of them as a whole convinces us that she was a qualified juror.

After the jury had been impaneled, the trial judge called the attorneys of the respective parties to the bench, and inquired of them whether it was their desire that the jury be not allowed to separate during the trial. On receiving an affirmative answer, he said that it was more than likely that certain members of the jury had automobiles on the street which they would desire to have cared for, and that certain others of them might wish to announce to their homes the cause of their failure to return, and asked whether, if such requests were made, they should be granted. To this counsel consented. The court then announced to the jury that they would be kept together during the trial, whereupon a juror stated that he had an automobile on the street which he would like to take to a garage and have some repairs made to it while he was detained on the jury. Another announced that he was in a similar situation, and that he also had some checks which it was necessary to deposit in a bank. A third juror stated that his daughter was in the courtroom, and that he would like to communicate with her. When these requests were made, counsel, without inquiry from the court, announced that there was no objection to granting the requests, and consented that they might separate from the body of the jury for the purposes mentioned during the coming noon hour. The court thereupon announced to the jurors that they might separate from the main body of the jury for the purposes mentioned, instructing them not to communicate with any one about the case or suffer any one to communicate with them about it.

The appellant assigns error on this action of the court, contending, if we correctly understand his contentions, first, that he did not assent in person; and, second, that they were errors which could not be cured by assent. To the first part of the objection it is a sufficient answer to say that his counsel assented to them in his presence without objection on his part, and that if his counsel spoke without his authority his time to object was then, and that it is too late after verdict. State v. Stockhammer, 34 Wash. 262, 75 P. 810. The cited case is authority, moreover, for holding that these are matters on which counsel has the right to speak for his client, and that the interest of orderly procedure requires that, when he does so speak, it be conclusively presumed that he speaks with authority.

As to the second part of the objection, there are rights accorded by law to a defendant in a criminal cause which he will not be permitted to waive ( State v. Ellis, 22 Wash. 129, 60 P. 136), but the right to have the jury kept together is not one of them. By the express terms of the statute (Rem. Comp. Stat. § 2159) a jury in a criminal cause, with the consent of the defendant, may be allowed to separate during the course of the trial, and it must follow, we think, if a defendant may consent to a general separation, he may consent to a partial separation, or a separation for the time being.

The appellant argues that the action of the court requesting a separation practically amounted to coercion in so far as the defendant was concerned, as after the request they could not well refuse without prejudicing the defendant's cause with the jury. But the preliminary conversation, as we have stated, was without the hearing of the jury. Plainly, if counsel then did not desire even a partial separation of the jury, such as was had here, he had but to refuse his assent without knowledge of the fact being made known to the jury, when undoubtedly it would have been respected. This court has...