State v. Johnson

• Decision Date: 20 December 1926
• Docket Number: 20048.
• Citation: 141 Wash. 324,251 P. 589
• Parties: STATE v. JOHNSON et al. (KENDALL, Appellant.
• Court: Washington Supreme Court

251 P. 589

141 Wash. 324

STATE v. JOHNSON et al. (KENDALL, Appellant.

No. 20048.

Supreme Court of Washington

December 20, 1926

Department 1.

Appeal from Superior Court, King County; Jones, Judge.

James Kendall was convicted of robbery, and he appeals. Affirmed.

Crandell & Crandell, of Seattle, for appellant.

Ewing D. Colvin, Robert S. Macfarlane, and James M. Bailey, all of Seattle, for the State.

HOLCOMB J.

Appellant and another were jointly tried, convicted, and both sentenced to indeterminate terms of not less than 20 nor more than 30 years in the state penitentiary. Appellant alone appeals.

The evidence for the prosecution showed that about noon, on September 29, 1925, appellant and his codefendant entered the Queen City State Bank in Fremont, a suburb of Seattle. Both men were armed and ordered the patrons then in the bank and the officers of the bank to lie down on the floor. One of the clerks, named Jurey ran to his room pursued by one of the armed robbers, succeeded in getting in his room, closing the door, and giving an alarm. Approximately $6,490 was taken from the bank. Both appellant and his codefendant were positively identified by employees of the bank and patrons present at the time. Appellant attempted to escape in an automobile, was pursued, and apprehended when the car became involved in a wreck. Appellant was injured in the accident and was removed by bystanders from the wrecked car.

During the trial of the case, upon the cross-examination of witness Williams, cashier of the bank the following questions and answers were made:

'Q. What kind of a coat did Mr. Fenning, the man with the red hair whom you claim to identify, wear, when you claim he came toward you at the vault? A. He just had a suit on.

'Q. I didn't ask you about the suit; I asked you what kind of a coat he had on? A. I didn't pay so awful much attention to it. My remembrance is it was kind of a blue coat.

'Q. A blue coat? A. I wouldn't say positively it was blue; no.

'Q. Then why did you just say it was blue? A. Well, I said it was kind of a blue.

'Q. Well, was it or was it not a blue coat? A. I could not say.

'Q. Then why did you say a moment ago it was blue? You have said this is the man; and you have said, in response to a question, he wore a blue coat. Now you say you won't say whether it was blue or not? A. No.

'Q. Well, was it blue or was it not blue? A. I paid more attention to the gun.

'Q. I didn't ask you about the gun. Don't evade the question. Was it blue or was it not blue? A. I don't know whether it was or not.

'Q. You don't know whether it was or not. Then why did you presume to answer, when a man's liberty is at stake, and say it was blue when you don't know?

'Mr. Macfarlane: It seems to me he is arguing with the witness; objected to for that reason.

'Mr. Crandell: That would be true if it were not for the witness' statement. It is a serious matter, and I should be allowed the fullest latitude.

'The Court: I think you should; but you should not be allowed, at the same time, to distort the statement of the witness.

'Mr. Crandell: Of course, to that statement, I desire an exception, as being a comment on the evidence.'

The first claim of error is that the court erred in commenting upon the evidence by stating that counsel for the defense had 'distorted the statement of the witness.'

To sustain this claim appellant cites article 4, section 16, of the state Constitution, providing that judges shall not charge juries with respect to matters of fact, nor comment thereon, and our cases of State v. Crotts, 22 Wash 245, 60 P. 403; State v. Jackson, 83 Wash. 514, 145 P. 470; Eckhart v. Peterson, 94 Wash. 379, 162 P 551; State v. Warwick, 105 Wash. 634, 178 P. 977; State v. Herwitz, 109 Wash. 153, 186 P. 290; Spokane v. Dale, 112 Wash. 533, 192 P. 921; State v. Godwin, 136 Wash. 582, 240 P. 897.

The trial court instructed the jury, as is usual, that it had not intentionally commented on the evidence or upon the credibility of any witness, and, if it seemed to the jury that such had been the case, the jury were instructed to entirely disregard the same and determine the facts solely from the evidence introduced.

It will be observed from the testimony heretofore quoted that the witness had not testified that the appellant had on a blue coat, but his codefendant, Fenning, had on a coat which was, according to the witness' impression, a kind of a blue coat; that he would not say positively that it was blue. Appellant's attorney, in the heat of cross-examination, argued with the witness that he had said that it was a blue coat. When the attorney for the state objected to the cross-examination on the ground that counsel for appellant was arguing with the witness, counsel for appellant insisted that in such a serious matter he should be allowed the fullest latitude. The court agreed with him, and merely warned him that he should not distort the statement of the witness. This statement of the court was made to the attorney in a ruling upon an objection and given as a warning to the attorney, which was perfectly legitimate. It was not a statement made to the jury and was not an unconstitutional comment upon the evidence. 16 C.J. 829; State v. Brehan (Wash.) 252 P. 128 filed Jan. 5, 1927. We find no merit in the above contention.

The second claim of error is for permitting counsel for the state to cross-examine the state's witness Jurey, in the absence of surprise or that the witness was hostile to the state. The record shows that this identification also went to the codefendant of appellant, and further shows that counsel ...