State v. Johnson, 27157.
| Decision Date | 29 July 1938 |
| Docket Number | 27157. |
| Citation | 195 Wash. 545,81 P.2d 529 |
| Parties | STATE v. JOHNSON |
| Court | Washington Supreme Court |
Department 1.
Appeal from Superior Court, Thurston County; D. F. Wright, Judge.
Madeline Johnson and her husband were convicted of burglary in the second degree, and Madeline Johnson appeals.
Affirmed.
P. C Kibbe, of Tenino, and Oliver R. Ingersoll, of Olympia, for appellant.
Smith Troy, John S. Lynch, Jr., and E. A. Philbrick, all of Olympia, for the State.
The appellant and Peter Johnson, her husband, were charged tried, and convicted of the crime of burglary in the second degree. After the verdict of guilty, motions in arrest of judgment and for a new trial were presented to the court, and denied. The trial court then sentenced appellant to imprisonment in the state penitentiary. From the verdict of the jury and the judgment, this appeal is prosecuted.
Error of the trial court is assigned in refusing to dismiss the case or grant a new trial, in allowing the prosecuting attorney to make certain statement to the jury, in admitting evidence concerning another burglary, and in refusing to give certain instructions requested by the appellant.
Subsequent to the verdict of guilty, but prior to passing sentence upon Peter Johnson, he died.
This case was Before this court in State v. Johnson, 192 Wash. 467, 73 P.2d 1342.
The facts stated in that opinion are the same as those presented in this case, except those set out in the former opinion which related to a crime supposed to have been committed by the father of appellant. Some additional evidence is presented here which will be considered as we proceed.
Appellant contends that the court should have dismissed the action because there was no evidence produced which showed that appellant or her husband, who was with her at the time of the entry, opened or broke open the door of the house.
The evidence produced on behalf of appellant was to the effect that the lock on the door could not be opened with the pliers that appellant's husband gave to Mrs. Frerrero. However a witness for the state testified that the lock could be broken or picked by the use of a screwdriver. Appellant admitted being in the cottage with her husband, and it was proven that the burglar alarm sounded and that it could not be set off unless the door was opened.
Whether appellant's entrance to the house was effected by the use of the pliers or some other instrument, the testimony in the case and the circumstances were sufficient to take the case to the jury, and it was then a question for the jury's determination as to whether the house was broken into and entered for the purposes alleged in the information.
Appellant urges that the court erred in admission of testimony concerning the entry of the Dewhurst home on the 7th of January, 1937, three days Before the time it is charged in the information the crime was committed, and that the evidence in that regard was admitted in order to prejudice the jury.
The only purpose of admitting the testimony concerning the entry on the seventh was to prove that the alarm was in good working order, and that the contents of the house were in their proper places and not piled in the middle of the floor as they were on the tenth when appellant and her accomplice were apprehended. No attempt was made by the state to connect the appellant with the entry made on the seventh. There was no error in the admission of this testimony.
It is next contended that the prosecuting attorney in his closing argument to the jury made statements that were improper and so prejudicial as to call for the granting of a new trial.
The statements made by the prosecutor were in answer to arguments of appellant's counsel. The attorneys for the defense made an eloquent plea to the jury to consider the financial condition of the appellant, the hardships of her early life and that she would have to go to the penitentiary if convicted. In answer to this argument Mr. Troy, the prosecuting attorney, suggested that the punishment in case of conviction would be left in the hands of...
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State v. Rio
...150 Wash. 479, 273 P. 731; State v. Birch, 183 Wash. 670, 49 P.2d 921; State v. Lindsey, 192 Wash. 356, 73 P.2d 738; State v. Johnson, 195 Wash. 545, 81 P.2d 529. We are not required to commend the prosecutor's statement in order to hold that it was not prejudicial error requiring a new App......
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State v. Studebaker
...error. State v. Benton, 150 Wash. 479, 273 P. 731 (1929); State v. Lindsey, 192 Wash. 356, 73 P.2d 738 (1937); State v. Johnson, 195 Wash. 545, 81 P.2d 529 (1938). The objectionable remarks of the prosecutor were invited by defense counsel's arguments and were not so prejudicial as to have ......