State v. Hodoff

• Decision Date: 08 December 1915
• Docket Number: 12752.
• Citation: 88 Wash. 413,153 P. 377
• Parties: STATE v. HODOFF.
• Court: Washington Supreme Court

153 P. 377

88 Wash. 413

STATE v. HODOFF.

No. 12752.

Supreme Court of Washington

December 8, 1915

Department 2. Appeal from Superior Court, Chehalis County; Ben Sheeks Judge.

Arsymak Hodoff was convicted of robbery, and he appeals. Affirmed.

Kazis Krauczunas and J. Grattan O'Bryan, both of Seattle, for appellant.

J. E Stewart and A. Emerson Cross, both of Aberdeen, and O. M Nelson, of Montesano, for the State.

MORRIS C.J.

On the evening of March 28, 1914, the Bank of Elma was robbed by five men, some of whom, stationed at different places, held up the officers and customers with revolvers, while others removed from the vault several sacks containing in all $4,280 in gold, silver, and currency. On the 15th of April following the appellant, Hodoff, and two other men, Malsogoff and Dobreff, were arrested at the Milwaukee Hotel, in Seattle, and lodged in the city jail, and the same evening Mr. France and Mr. Fleming, the cashier and teller, respectively, of the Elma bank, the two officials in the bank at the time of the robbery, were taken to the jail to identify the robbers. Following this identification, and on April 16th, the prosecuting attorney for Chehalis (now Grays Harbor) county, in which the city of Elma is situated, filed a criminal complaint charging the three men with the crime of robbery, and caused them to be removed to the county jail in Montesano. On April 27th appellant had a preliminary hearing before a justice court at Montesano, and, upon the testimony of Fleming that he recognized the appellant as one of the robbers, he was held to appear for trial in the superior court. An information was subsequently filed, charging the appellant, Malsogoff, and Dobreff with the robbery, and at a trial duly held the appellant was found guilty and sentenced to a term in the state penitentiary. Appellant's motion for a new trial being overruled, he has appealed to this court.

The grounds on which a new trial was asked were: (1) Misconduct of the jury; (2) newly discovered evidence and surprise; (3) errors in the introduction of evidence; and (4) that the verdict is contrary to law and the evidence, particularly owing to the misconduct of the prosecution occurring at the trial. We will discuss these in order.

1. The claimed misconduct of the jury is that during the consideration of the case several jurors became engaged in a controversy, and one of them, being affected by the excitement, fainted, which, it is asserted, caused him to render his verdict against the appellant to avoid a protracted discussion of the case, and not because of his belief in the appellant's guilt. No affidavit setting out the facts was presented to the trial judge, and, there being no showing of misconduct other than that stated in the motion for new trial, we will not presume that the illness of the juror affected his verdict.

2. The evidence which was stated in the motion to be newly discovered was that the appellant was identified by Mr France in the police station in Seattle, and was not identified by Mr. Fleming, as Fleming testified at the trial, and evidence that the appellant was not at the Mecca Hotel, at Aberdeen, shortly after the robbery, but was in Seattle. The appellant contends that the testimony of the prosecution that he was at the Mecca Hotel came as a surprise which he was not prepared to defend against. Accompanying the motion were the affidavits of the appellant's attorney and of several fellow countrymen, setting forth their knowledge of these circumstances and the reasons for their not testifying. The motion on this ground was properly denied, for the following reasons: There is no affidavit that the appellant did not personally know of the evidence claimed to be newly discovered, the only affidavit being by his attorney ( State v. Magers, 36 Or. 38, 58 P. 892); neither the affidavits nor the motion show that the evidence could be produced in the event of a new trial ( State v. Miller, 3 Wash. 131, 28 P. 375); and no continuance was asked to enable the appellant to secure evidence to refute that introduced by the prosecution. It also appears that evidence of the appellant's whereabouts at the time of the commission of the crime would be merely cumulative of evidence given by his other alibi witnesses, and that the evidence that Mr. France and not Mr. Fleming identified him in Seattle would tend, on the one hand, to impeach Mr. Fleming's testimony, and, on the other, to corroborate the testimony of Mr. Majewski, a detective, who testified that it was Mr. France who identified the appellant. It is a general rule that a new trial will not be granted on the ground of newly discovered evidence when the new evidence relied upon is merely cumulative of that introduced at the former trial ( O'Toole v. Faulkner, 34 Wash. 371, 75 P. 975); nor where the only purpose of such evidence is to impeach or discredit evidence produced at the trial ( Orr v. Schwager & Nettleton, 74 Wash. 631, 134 P. 501). Evidence of the identification and of the appellant's whereabouts at the time of the robbery was introduced by both the state and the appellant, and the...