State v. Freidrich

• Decision Date: 11 October 1892
• Citation: 31 P. 332,4 Wash. 204
• Parties: STATE v. FREIDRICH.
• Court: Washington Supreme Court

31 P. 332

4 Wash. 204

STATE v. FREIDRICH.

Supreme Court of Washington

October 11, 1892

Dissenting opinion. For majority opinion, see 29 P. 1055.

Per Hoyt, J., dissenting.

HOYT, J.

I am unable to agree with the conclusions of the majority in this case. I think that reversible error was committed by the lower court in its rulings during the examination of the witnesses Murphy and Bogart. During the examination of the former, the prosecuting attorney asked the following question: "I will ask you if you heard him, [referring to Scherbring] while he was asleep there, mumbling with his hands, and saying, 'Freidrich, don't,' in his sleep." The court overruled the objection of defendant's counsel, and allowed this question to be answered. In my opinion such question was clearly incompetent, and the objection of the defendant's counsel should have been promptly sustained. And I understand that the majority of the court so hold; but they refuse to reverse the case on that ground, for the reason that it does not appear that the answer elicited by such question was prejudicial to the defendant, I think it was. If the witness had answered the question directly in the negative, the error would probably have been without prejudice. But such was not the case. The answer of the witness was that he "did not remember particularly about that;" and therefrom the jury might have been led to believe that there was something of that kind said by Scherbring in his sleep, but that just exactly what it was, and whether it was exactly in the language of the question or not, had passed from the memory of the witness. If the jury did draw such a conclusion from said question, and the answer thereto, it might have materially influenced their verdict. The exclamations of Scherbring, when asleep, as to who shot him though clearly incompetent, and without weight from a legal standpoint, might well have had a potent influence upon the minds of the jury. The ruling of the court being erroneous it will be presumed that it was prejudicial, unless the contrary plainly appears; and to my mind not only does such contrary fail to appear, but such facts do appear as show that such error was probably prejudicial. If I were in doubt about this error being prejudicial from an examination of the testimony of the witness Murphy alone, I should no longer be in doubt when I examined such testimony, and the action of the court in relation...