State v. Gilmore

• Decision Date: 08 February 1962
• Docket Number: No. 35615,35615
• Citation: 59 Wn.2d 514,368 P.2d 722
• Court: Washington Supreme Court
• Parties: The STATE of Washington, Respondent, v. Robert Merlyn GILMORE and James Gordon Lee, Defendants, Charles William McGinnis, Appellant.

Page 514

59 Wn.2d 514

368 P.2d 722

The STATE of Washington, Respondent, v. Robert Merlyn GILMORE and James Gordon Lee, Defendants, Charles William McGinnis, Appellant.

No. 35615.

Supreme Court of Washington, Department 1.

Feb. 8, 1962.

Henry Opendack, Seattle, for appellant.

Charles O. Carroll, Pros. Atty., Anthony Savage, Jr., Asst. Chief Crim. Deputy, Seattle, for respondent.

HILL, Justice.

The defendant, charles William McGinnis, was found guilty of burglary in the second degree. He contended, on a motion for a new trial, that he did not have a fair trial because of the presence of Lady Irene Osborn on the jury.

It is urged that since the defendant and Mrs. Osborn's son were cell mates in the King county jail, where the latter was being held awaiting transportation to the reformatory while McGinnis was awaiting trial, she must have seen McGinnis in the county jail when she went to visit her son and prior to her being selected as a juror in this case.

On voir dire examination the following questions were asked and answers given:

(questions by the court) 'Q. Mrs. Osborn, by any chance have you heard of this incident before ? A. No, I haven't. Q. Do you know any of the defendants, any of the attorneys, or any of the witnesses? A. No, I haven't. Q. Do you or any member of your family have any connection with law enforcement work? (No verbal answer.) Q. Do you think of any reason at all, Mrs. Osborn, why you could not sit as a completely fair and impartial juror in this particular case? A. No.'

(question by an assistant prosecuting attorney) '* * * can you think of any reason why you can't sit as an impartial juror? A. No.'

(question by defense counsel) 'In your mind, Mrs. Osborn, as we sit here, are the defendants guilty or innocent? A. Innocent.'

All parties passed the juror for cause.

It is now urged that she had a duty to: (a) disclose that her son was a cell mate of the defendant; and (b) disclose that her son was a convicted felon presently serving time.

Conceding that she had seen the defendant in the county jail, when she went to visit her son, she specifically denies, in a post-trial affidavit, that she knew anything about the defendant or his case prior to the trial; and there is not the slightest intimation that she did.

That Mrs. Osborn, before becoming a juror in this case, saw the defendant in jail is not prejudicial to his right to a presumption of innocence. As we said in State v. Boggs (1961), 157 Wash.Dec. 381, 386, 358 P.2d 124, 127,

'* * * It is common knowledge that a person charged with an...