State v. Johnson

• Decision Date: 04 February 1960
• Docket Number: No. 35141,35141
• Citation: 55 Wn.2d 594,349 P.2d 227
• Court: Washington Supreme Court
• Parties: STATE of Washington, Respondent, v. Martin Nels JOHNSON, Appellant.

Page 594

55 Wn.2d 594

349 P.2d 227

STATE of Washington, Respondent, v. Martin Nels JOHNSON, Appellant.

No. 35141.

Supreme Court of Washington, Department 2.

Feb. 4, 1960.

Rehearing Denied March 18, 1960.

Carl Maxey, Spokane, Henry Opendack, Seattle, for appellant.

John J. Lally, Justin L. Quackenbush, Theodore R. Fournier, J., Spokane, for respondent.

ROSELLINI, Judge.

The appellant was charged with four counts of petit larceny, two counts of grand larceny, and one count of fraudulent destruction of insured property. The case was called for trial on September 4, 1958, before the Honorable Louis F. Bunge. At that time appellant, his counsel, and counsel for respondent signed a stipulation agreeing that the jurors could separate during the trial. The selection of the jury was completed shortly before noon on September 5th.

Following the noon recess and before the reception of any evidence, the presiding judge conferred with counsel and with Judges Bunge and Foley regarding transfer of the case from Judge Bunge to Judge Foley. The request for transfer was made to facilitate assignment of a lengthy trial to Judge Bunge, who was the only judge then available to hear such a case without interruption by other commitments. Both appellant and his counsel agreed to the transfer and waived any claim of error.

Before the reception of any evidence, the state repeated its opening statement.

Appellant moved for dismissal at the close of the state's case and again after all the evidence had been submitted. Both of these motions were denied. The appellant submitted to proposed instructions and did not except to any of the instructions given. The jury acquitted him on the first four counts, but found him guilty of grand larceny and fraudulent destruction of insured property. A subsequent motion for a new trial was denied.

The contentions of the appellant are (1) that the court erred in giving an instruction regarding the duty of the jurors to conscientiously endeavor to reconcile their differences if possible; (2) that it was reversible error to substitute one judge for another after the jury was impaneled.

It would serve no useful purpose to set forth the instruction complained of in the first assignment of error, inasmuch as we cannot consider the alleged error. ¹ Only exceptions which are made to instructions in the trial court can be considered on appeal. State v. Lyskoski, 47 Wash.2d 102, 287 P.2d 114.

The second assignment of error presents a new question in this jurisdiction. The general rule, as stated by the appellant in his brief, is that a judge may not be substituted to preside over the remainder of a trial after evidence has been adduced before the original judge. The leading case is Commonwealth v. Thompson, 328 Pa. 27, 195 A. 115, 114 A.L.R. 432.

As a rule, a judge cannot finish the performance of a duty already entered upon by his predecessor where that duty involves the exercise of judgment and the application of legal knowledge to, and judicial deliberation of, facts known only to the predecessor. Durden v. People, 192 Ill. 493, 61 N.E. 317, 55 L.R.A. 240; Commonwealth v. Thompson, supra, 30 Am.Jur. 25, § 39.

It immediately is apparent that the substitution of a judge after the jury has been sworn but before any evidence has been taken, does not involve this objection. As was said in Commonwealth v. Thompson, supra, the...