State v. Freitag, 6051

• Decision Date: 22 November 1933
• Docket Number: 6051
• Citation: 53 Idaho 726,27 P.2d 68
• Parties: STATE, Respondent, v. ERNEST FREITAG, Appellant
• Court: Idaho Supreme Court

27 P.2d 68

53 Idaho 726

STATE, Respondent, v. ERNEST FREITAG, Appellant

No. 6051

Supreme Court of Idaho

November 22, 1933

CRIMINAL LAW-WITNESSES-EXAMINATION BY COURT - APPEAL - REVIEW IN ABSENCE OF EXCEPTIONS.

1. In manslaughter prosecution for death caused while driving automobile, cross-examination by court of accused leaving inference that court believed accused to be guilty of involuntary manslaughter held reversible error (I. C. A secs. 48-502, 48-540, 48-557, 17-1106).

2. Error could be assigned to court's cross-examination of accused though court's questions were not objected to where error was predicated, not on inadmissibility of testimony adduced by questions, but on court's conduct in propounding them.

3. Judge's cross-examination of accused in manslaughter prosecution held "judicial act" within statute providing that judicial acts in criminal action occurring before or after judgment shall be deemed excepted to and need not be embodied in bill of exceptions and therefore reviewable on appeal (I. C. A., sec. 19-2301).

APPEAL from the District Court of the Seventh Judicial District, for Canyon County. Hon. John C. Rice, Judge.

Appeal from judgment of conviction of manslaughter. Reversed and remanded, with instruction to grant a new trial.

Judgment reversed, with instruction. Petition for rehearing denied.

D. L Rhodes and Geo. H. Van de Steeg, for Appellant.

It is proper for the purpose of eliciting evidence which has not otherwise been brought out for the judge to put questions to witnesses either on direct or cross examination; but it is better practice not to do so unless absolutely necessary, and in no case should questions be put in such a manner as to impress the jury that the court has an opinion of the merits.

And unless it can be said that the question are such that they indicate absolute impartiality, then the examination will constitute reversible error. (16 C. J. 831; State v. Crotts, 22 Wash. 245, 60 P. 403; Koontz v. State, Okla. Cr. 553, 139 P. 842, Ann. Cas. 1916A, 689; State v. Jackson, 83 Wash. 514, 145 P. 470; Douglas v. State, 19 Okla. Cr. 257, 199 P. 927.)

Bert H. Miller, Attorney General, and Ariel L. Crowley, Assistant Attorney General, for Respondent.

Interrogation of witnesses by the judge is not a judicial act; hence is not deemed excepted to. No objection or exception being preserved, no review may be had. (State v. Frank, 51 Idaho 21, 27, 1 P.2d 181; State v. Smiles, 51 Idaho 321, 5 P.2d 540; Cooley's Const. Lim., 6th ed., p. 108; State v. Ramirez, 34 Idaho 623 (632), 203 P. 279, 29 A. L. R. 297.)

Failure to object to examination by judge is waiver of right to review on appeal. (State v. Richardson, 69 Mont. 400, 222 P. 418; People v. Abrams, 249 Ill. 619, 94 N.E. 985.)

MORGAN, J. Holden and Wernette, JJ., concur. Budge, C. J., and Givens, J., dissent.

OPINION

MORGAN, J.

This is an appeal from a judgment of conviction of manslaughter. The evidence shows appellant drove an automobile along a public highway, after dark, and ran it against another automobile being driven along the highway in the same direction, and that Floyd Hains, who was riding in the last mentioned car, was thrown out and killed as a result of the collision.

Appellant complains he was not given a fair and impartial trial, and assigns as error the action of the trial judge in cross-examining him in the presence of the jury. The case must be reversed on this specification of error, and other assignments will not be discussed because the questions therein presented are not likely to arise on a new trial.

The following quotation from the opinion of Chief Justice Cooley, in Wheeler v. Wallace, 53 Mich. 355, 19 N.W. 33, is applicable to this case:

"It is very unusual to have exception taken on writ of error to the manner and deportment of the trial judge in the conduct of the trial, and under ordinary circumstances a court of review would not scrutinize very closely his methods when no error in his rulings was alleged. Still, it is possible for a judge to deprive a party of a fair trial, even without intending to do so, by the manner in which he conducts the case, and by a plain exhibition to the jury of his own opinions in respect to the parties, or to their case; and when it is apparent that a fair trial has not been had, a court of review should give relief as soon for that cause as for any other. The fact that the duty to do so is unusual or unpleasant, is no reason for declining it.

"In this case we are satisfied the plaintiff has not had a fair trial. In saying this it is not necessary to impute to the judge any purpose to be a partisan in the case, or otherwise unfair. It is not likely he intended to try the case with less than his customary urbanity and courtesy; and when he brings before the jury, as he does in his charge, the familiar figure of the goddess of justice, with her scales nicely weighing and scrutinizing the evidence, it is to be assumed that he meant to be as impartial himself as he directed the jury to be. It is, nevertheless, possible for a judge, however correct his motives, to be unconsciously so disturbed by circumstances that should not affect him, as to do and say, in the excitement of a trial, something, the effect of which he would not at the time realize, and thereby accomplish a mischief which was not designed. Possibly, such circumstances may have existed in this case."

To know the judge who tried this case is to acquit him of any suspicion that he was actuated, in doing the things complained of, by an improper motive. No jurist of our acquaintance has, or deserves, a better reputation for integrity and fairness than does he. However, as argued by counsel for appellant, the greater the reputation of the judge for impartiality, the greater the injury to the litigant against whom he appears to throw the weight of his influence, whether consciously or unconsciously.

Counsel for respondent insists, in effect, the judge sought not to injure, but to aid appellant by his cross-examination. We are unable to adopt this view. The impropriety of the presiding judge participating in the trial of a case in aid of one of the parties is of the same degree as would be in case of his participation in aid of the other. Furthermore, we are not concerned here with what may have been in the mind of the judge which prompted the cross-examination, our concern is as to what that cross-examination may have placed in the minds of those who composed the jury which tried appellant.

The following is quoted from the cross-examination of appellant by the prosecuting attorney:

"Q. Would you say your brakes were in a dangerous condition?

"A. No, they were not dangerous.

"Q. Driving your car at 45 miles an hour, you could stop within the distance that your lights shone?

"A. I could have under reasonable conditions.

"Q. What do you call reasonable conditions?

"A. Where, naturally where there would be some reason to stop.

"Q. Wasn't it a reason to stop when there is a car right ahead of you?

"A. I couldn't stop that close, no.

"Q. You couldn't slow it up enough to dodge around it?

"A. No, not with the condition of the car, I could not.

"Q. Not in the condition in which your car was?

"A. Not in the condition of my car.

"Q. The condition of the brakes on your car?

"A. Not the brakes.

"Q. What else?

"A. Well, for the same reason that it was turned over before; because you couldn't turn it; the shock absorbers on the rear of the car were both broken, and those Buicks have cantilever springs and then with these shock absorbers broken, you can't turn quickly, your car turns over very easy.

. . . .

"Q. Then it was the condition of the car, being unable to turn it, and not the brakes?

"A. Well, I suppose that was partly it.

"Q. How long had these shock absorbers been broken?

"A. I don't know. Some time before that.

"Q. Well, how long before had it turned over?

"A. I don't know exactly how long. Some time during the summer.

"Q. Had the shock absorbers been broken during all of that time?

"A. The one on the outer side had."

At the end of the cross-examination the following occurred:

"The Court: Just a minute. I want to ask a few questions and my questions are subject to objection.

"Q. You say that the shock absorbers had been broken for several months?

"A. One of them had.

"Q. Did you know all that time that your car was liable to turn over by turning to the left?

"A. I did. I tried several times to get new straps for it but they didn't have them in town and in Boise they told me, all the garage men I asked about it said they were high priced and they didn't carry them in stock and they would try to get some.

"Q. I don't care about that. You knew the car was liable to turn over if you turned suddenly to the left?

"A. Yes.

"Q. How long had your brakes been in bad shape?

"A. I never had had good brakes, that is really good brakes. I had new lining put on several times but they never seemed to be able to fix them up. Nothing seemed to be wrong with them but they wouldn't work; they would work fair.

"Q. But you knew on the 11th of November (the date of the collision) that the brakes were in bad shape?

"A. I knew the foot brakes were in bad shape.

"Q. Did you drink anything from the time of the accident between that and the time when you went back to the city jail?

"A. No, I did not."

There was evidence that appellant appeared to be intoxicated when he was taken into custody at the scene of the collision and immediately after he was taken to the city jail. Testimony showing he did not drink intoxicating liquor between the time of the collision and his arrival at the jail would invite the inference that if he was intoxicated when he reached the...