State v. Harras

• Decision Date: 02 January 1900
• Citation: State v. Harras, 22 Wash. 57, 60 P. 58 (Wash. 1900)
• Parties: STATE v. HARRAS.
• Court: Washington Supreme Court

60 P. 58

22 Wash. 57

STATE v. HARRAS.

Supreme Court of Washington

January 2, 1900

Appeal from superior court, Walla Walla county; Thomas H. Brents Judge.

Reinhold Harras was convicted of larceny, and appeals.Reversed.

Fullerton J., dissenting.

H. S Blandford, Wm. H. Upton, and Geo. H. Thompson, for appellant.

Oscar Cain, Pros.Atty., for the State.

CORDON C.J.

The appellant was convicted of larceny under an information which charged him with stealing 'four head of neat cattle.'The conviction was set aside and a new trial awarded in the superior court upon the appellant's motion.Thereafter his counsel moved for his discharge, and an entry of judgment of acquittal, upon the ground that at the former trial the jury had been permitted to separate without the consent of the defendant.His motion was denied and exception preserved.Thereupon a plea of former acquittal was entered, and upon the issue the jury found against the defendant, who subsequently entered a plea of not guilty.The trial which followed resulted in his conviction, and he has appealed.

We think the court did not err in overruling appellant's challenge to Juror Paul.While it is true that in the course of his examination the juror stated, that he had an impression, going to the merits of the case, based upon something he had previously heard or read, it is apparent from a consideration of the entire examination that he could discharge his duty as a juror wholly unembarrassed by the fact that he had previously heard or read something concerning it.Rose v. State, 2 Wash. St. 310, 26 P. 264, State v. Murphy,9 Wash. 204, 37 P. 420, State v. Moody,18 Wash. 165, 51 P. 356,

and other cases cited in appellant's brief, are not in point.

It is earnestly contended that the court should have discharged the appellant, and entered judgment of acquittal, because of the separation of the jury upon the former trial.We have not been referred to any case which sustains the contention, but, on the contrary, the point has been otherwise decided in numerous cases.Wyatt v. State, 1 Blackf. 257;Tervin v. State(Fla.)20 So. 551;Williams v. State,45 Ala. 57;Thomp. & M. Juries, § 312.It has many times been ruled in this court that the separation of a jury in a criminal case without the consent of the defendant entitles him to a new trial, but it has never been held that such separation amounts to a constructive acquittal.

At the former trial, which resulted in a conviction, as hereinbefore stated, one William Guse was examined as a witness for the defendant.Shortly thereafter Guse was arrested, charged with perjury committed in the course of the examination as such witness.He was subsequently convicted in the superior court, and upon appeal therefrom to this court the judgment of conviction was reversed, and the cause remanded, with directions to the lower court to quash the information.SeeState v. Guse(Wash.)57 P. 831.The conclusion reached by us in that case was that the information was insufficient to charge the crime of perjury.When the present case was upon trial in the lower court, and prior to the commencement thereof, the appellant asked for a continuance until this court should hear and determine the appeal in Guse's Case, then pending, to the end that, if the judgment of the superior court which convicted him should be reversed, appellant might be enabled to have him examined as a witness.The motion for continuance was denied, and an exception preserved.Thereafter at the trial the court refused to permit Guse to testify, for the reason that he was under conviction for perjury.Section 5992, 2 Ballinger's Ann. Codes & St., is as follows: 'No person offered as a witness shall be excluded from giving evidence by reason of conviction of crime, but such conviction may be shown to affect his credibility: provided, that any person who shall have been convicted of the crime of perjury shall not be a competent witness in any case, unless such conviction shall have been reversed, or unless he shall have received a pardon.'It is urged by appellant's counsel that the judgment by...