State v. Ingels

• Decision Date: 29 July 1940
• Docket Number: 27846.
• Citation: 4 Wn.2d 676,104 P.2d 944
• Parties: STATE v. INGELS.
• Court: Washington Supreme Court

104 P.2d 944

4 Wn.2d 676

STATE v. INGELS.

No. 27846.

Supreme Court of Washington

July 29, 1940

Department 2.

Ted Ingels was convicted of perjury, and he appeals.

Affirmed.

The materiality of allegedly perjured testimony is for the court to determine in perjury prosecution, and hence court properly instructed jury on what were material matters and properly refused to instruct jury that they could determine whether statements were material.

Appeal from Superior Court, Spokane CountyTimothy A. Paul, judge.

Edward M. Connelly, of Spokane, for appellant.

Ralph E. Foley and Leslie M. Carroll, both of Spokane, for respondent.

BEALS Justice.

The defendant, Ted Ingels, was indicted by the grand jury of Spokane county, for the crime of perjury in the first degree.He moved to set aside the indictment, and demurred thereto later filing to the indictment a plea in bar, supported by his His motion to set aside the indictment was denied, and his demurrer was overruled.His plea in bar was also denied.To all these rulings, defendant excepted.Defendant was then put upon his trial, the jury returning a verdict of guilty as charged.

Defendant seasonably filed a motion for arrest of judgment, or in the alternative for a new trial, which motions were denied.Judgment of guilty was then entered upon the verdict, and the defendant sentenced to confinement in the state penitentiary for not more than fifteen years.From this judgment and sentence, defendant has appealed.

Appellant assigns error upon the denial of his motion to set aside the indictment; upon the overruling of his demurrer to the indictment; and upon the denial of his plea in bar.He also contends that the trial court erred in denying his motion for a directed verdict of not guilty, based upon his challenge to the sufficiency of the evidence to sustain the crime charged.He also assigns error upon the denial of his motion for a transcript of his testimony Before the grand jury, in connection with the subject of campaign contributions, and upon the ruling of the trial court directing a witness who had reported the proceedings Before the grand jury to read the entire transcript of appellant's testimony Before that body, without permitting appellant and his counsel to previously examine such testimony.Appellant also assigns error upon the ruling of the trial court refusing to receive in evidence the stenographer's notes, when offered by appellant.It is also contended by appellant that the trial court erred in commenting upon the evidence, and upon the credibility of various witnesses; in admitting certain evidence over appellant's objection, and in refusing to strike other testimony on appellant's motion; in overruling his objection to questions propounded to appellant during his cross-examination by the prosecuting attorney; and in overruling his objections to questions propounded on cross-examination to a witness testifying on appellant's behalf.It is also contended that the trial court erred in permitting a witness for the state, called on rebuttal, to testify, over appellant's objections, to facts which appellant contends concerned acts of appellant not connected with the facts in the case at bar; and in refusing to instruct the jury not to consider the testimony of four designated witnesses.Error is also assigned upon the giving of one instruction, and upon the court's refusal to give an instruction requested by appellant; and upon the overruling of appellant's objection to certain portions of the arguments to the jury, as stated by counsel for the state.Finally, appellant contends that the trial court erred in denying his motion in arrest of judgment, and his motion for a new trial.

We shall first discuss appellant's contention that the trial court erred in denying his motion to set aside the indictment.Rem.Rev. Stat. § 2098 provides that upon arraignment, one charged with crime may move to set aside the indictment or information.The grounds for such a motion are stated in § 2099, paragraph 5 reading as follows: 'That the grand jury were not selected, drawn, summoned, impaneled, or sworn as prescribed by law.'

Appellant contends that the grand jury was not selected, drawn, or impaneled as prescribed by law, and that for this reason the indictment returned against him by the grand jury should have been set aside.It appears that the judges of the superior court for Spokane county, having directed that a grand jury be called, ordered the county clerk to draw from the jury lists already prepared, the names of seventy-five persons, and to summon those called to appear Before the judge who, for the time being, was acting as presiding judge.Two of the persons whose names were drawn were deceased, and of the remaining seventy-three, forty were excused by the presiding judge or some other judge of the superior court for Spokane county, the remaining thirty-three persons presenting themselves Before the presiding judge, as they were ordered to do.Appellant complains that some of the forty persons were excused for insufficient reasons, and that an arbitrary discretion was used in exempting them from liability to respond to the summons.

Rem.Rev.Stat. § 95 names certain classes of persons who shall not be compelled to serve as jurors;§ 97-1 makes it the duty of the superior court'to excuse from further jury service any juror' who, in the opinion of the court, has manifested unfitness to serve as a juror.This section does not apply to such a situation as is here presented.It is provided by § 100 that a person summoned as a juror may be excused from acting as such for any reason stated in § 95, above referred to, or because of sickness of the juror, illness in his family, or serious prejudice to his business.The section continues: 'When excused for any of the foregoing reasons, or for any reason deemed sufficient by the court,' the name of the juror shall remain upon the jury list, etc.

The statute vests in the superior court a wide discretion to be exercised in the matter of excusing persons summoned for jury service from the performance of that duty, and from the record in the case at bar, it does not appear that in excusing any of the forty persons above referred to as a group, from attendance Before the court, the judicial discretion was abused or exercised to appellant's prejudice.

March 8, 1939, the thirty-three prospective grand jurors reported to the presiding judge.Court convened, and the judge presiding directed 'that the work of qualifying and selecting seventeen grand jurors from the entire body of thirty-three prospective grand jurors reporting for duty,' proceed forthwith.The prosecuting attorney for Spokane county and his deputy, being present, under direction of the court propounded to the persons presenting themselves for duty such questions as appeared appropriate to enlighten the court as to the qualifications, or the lack thereof, of the respective persons to act as grand jurors.Appellant complains of the fact that the prosecuting attorney and his deputy so examined the prospective jurors, and argues that from the record it should be held that the prosecuting attorney in effect challenged some of the prospective grand jurors, and that certain persons were excused from duty as the result of the prosecutor's action, to appellant's prejudice.

While, of course, the prosecuting attorney has no right of challenge against a prospective grand juror, the record Before us does not disclose that in this instance the prosecutor transcended his authority, or did anything save follow the instructions of the court in interrogating the prospective jurors and eliciting information helpful to the court in passing upon the qualifications of the persons under examination.

In the case of State ex rel. Murphy v. Superior Court,82 Wash. 284, 144 P. 32, 34, this court stated that under the law a superior judge might direct that persons summoned as jurors 'should be examined as to their qualifications.'Under the statute, the court might propound questions to the prospective jurors in an endeavor to elicit information as to their qualifications, or might direct the prosecuting attorney or some other competent person to examine the prospective jurors along the lines suggested.No reversible error was committed by the court in directing the prosecuting attorney and his deputy to examine the jurors.

Of the thirty-three persons examined, six were excused by the court.The names of the remaining twenty-seven were placed in the box, and the names of seventeen drawn therefrom, these seventeen being sworn as the grand jury, and thereafter acting as such, performing certain official acts, including the indictment of appellant.It is argued on behalf of appellant that the act of the court in excusing the six persons referred to was without authority of law, rendered the indictment returned by the grand jury obnoxious to appellant's motion to set the same aside, and that this court should hold that in denying appellant's motion, the trial court committed reversible error, which calls for reversal of the judgment appealed from.

In this connection, appellant relies upon the opinion of this court in the case of State ex rel. Murphy v. Superior Court, supra.In the case cited, this court, on an application for a writ of certiorari to review an order of the superior court entered in connection with the matter of drawing a grand jury, held that the selection by the court from the group summoned from the jury list of seventeen persons to serve as a grand jury was not in accordance with the statute, and that an indictment returned by the grand jury so constituted should be quashed.From the opinion it appears that from approximately forty of the...