State v. Hyde

• Decision Date: 25 November 1898
• Citation: 20 Wash. 234,55 P. 49
• Parties: STATE v. HYDE.
• Court: Washington Supreme Court

55 P. 49

20 Wash. 234

STATE v. HYDE.

Supreme Court of Washington

November 25, 1898

Appeal from superior court, Pierce county; J. A. Williamson, Judge.

Edgar Hyde was convicted of an assault with intent to rob, and appeals. Reversed.

F. T. Peet and Murry & Carroll, for appellant.

A. R Titlow, Pros. Atty., and Hugh Farley, Dep. Pros. Atty., for the State.

GORDON J.

Conviction for an assault with intent to rob, and the defendant appeals. But a single question requires consideration. At the trial P.J. Concannon, a police officer of the city of Tacoma, who had arrested the defendant, was examined as a witness for the state. After the jury had been charged by the court, and had been out about an hour, they sent word to the judge that they desired to be further instructed in the case. We quote from the record: '* * * In the presence of the presiding judge, the said appellant, and counsel for both sides, said jury were brought back into the court room. Said jury then said, through their foreman, that they disagreed in their recollection of the testimony of P.J. Concannon (who was one of the witnesses for said respondent in said trial) as to admissions made to him (Concannon) by appellant, some remembering the testimony to the effect that Concannon swore that appellant said to him after the arrest that he (appellant) struck the blow, and others not remembering that Concannon so stated, and the jury asked the court what he did say. The court said: 'Gentlemen, as I have already charged you, you are the sole judges of the weight of the testimony and credibility of the witnesses; and it is your province to remember what the testimony is. I will say however, that my notes show that Concannon testified that appellant, on the way to the station, admitted to him (Concannon) that he struck the prosecuting witness the blow.'' It is conceded that the testimony of Concannon was correctly stated by the court, and again we quote from the record: 'Thereupon Juryman A. C. Campbell remarked to the court that Detective Concannon had also testified that at the same time appellant said, 'We got nothing;' to which inquiry the court informed the jury that he did not recall this. The appellant then and there duly excepted to each and all of the said statements of the court to the jury, which exception was allowed. Thereafter the jury retired, and subsequently returned with a verdict of 'Guilty as charged."

Counsel for appellant contends that this statement by the trial judge was a comment upon the evidence, and forbidden by our constitution (article 4, § 16), which reads: 'Judges shall not charge juries with respect to matters of fact, nor comment thereon, but shall declare the law.' Referring to this constitutional provision in State v. Walters, 7 Wash. 246, 34 P. 938, 1098, we said: 'It is not the...