State v. Johnston

• Decision Date: 22 December 1914
• Docket Number: 12125.
• Parties: STATE v. JOHNSTON.
• Court: Washington Supreme Court

144 P. 944

83 Wash. 1

STATE v. JOHNSTON.

No. 12125.

Supreme Court of Washington

December 22, 1914

Department 2. Appeal from Superior Court, Spokane County; Bruce Blake Judge.

Mary M Johnston was convicted of murder, and she appeals. Affirmed.

Robertson & Miller, Rosenhaupt & Grant, and Harry L. Cohn, all of Spokane, for appellant.

Geo. H Crandall and F. M. Goodwin, both of Spokane, for the State.

ELLIS J.

The defendant was charged with the crime of murder in the first degree, which it is alleged she committed on April 29, 1913, in Spokane county, by then and there administering to her son Raymond O. Johnston strychnine, with premeditation to compass his death. The cause came on for trial on June 19, 1913. On June 26, 1913, the jury returned a verdict finding the defendant guilty as charged in the information. The defendant moved for a new trial, and also moved in arrest of judgment. Both of these motions were overruled. From the judgment of conviction and sentence to confinement at hard labor in the penitentiary for a period not less than the term of her natural life, the defendant prosecutes this appeal.

It is claimed that the court erred: (1) In refusing to permit the appellant to exercise more than six peremptory challenges in selecting the jury; (2) in refusing to grant a new trial on the ground of misconduct of the prosecuting attorney in the course of his argument to the jury.

1. The first objection is merely stated without argument or sustaining authority. We assume, however, that it is based upon the statute (Rem. & Bal. Code, § 2138), which, so far as pertinent, reads:

'In prosecution for capital offenses, the defendant may challenge peremptorily twelve jurors; in prosecution for offenses punishable by imprisonment in the penitentiary, six jurors; in all other prosecutions, three jurors.'

It is clear that the 12 challenges are only allowed in prosecutions for capital offenses. A 'capital offense' is one which may be punishable with death. Black's Law Dictionary (2d Ed.) p. 167; Ex parte Walker, 28 Tex.App. 246, 13 S.W. 861; Ex parte McCrary, 22 Ala. 65; Ex parte Dusenberry, 97 Mo. 504, 11 S.W. 217.

The statute above quoted obviously uses the term 'capital offenses' as so defined. The second clause, by allowing only 6 peremptory challenges in prosecutions for offenses punishable by imprisonment in the penitentiary, in effect, defines such offenses as not capital. Capital punishment was abolished in this state by the act approved March 22, 1913 (Laws 1913, p. 581), which went into effect on June 9, 1913, ten days before this case was called for trial. The first clause of the statute relating to peremptory challenges above quoted was clearly suspended by the abolition of capital punishment. Since there is now no capital punishment in this state, there are no capital offenses, hence no offense in prosecution for which the provision for 12 peremptory challenges can be invoked. No amount of argument could add to the clear sequence of this conclusion. It is intimated by counsel that, inasmuch as the law abolishing capital punishment went into effect after the commission of the crime, though before the trial, the 12 peremptory challenges should have been allowed. The suggestion loses all point when it is remembered that the appellant was not insisting upon the application of the capital penalty in case of her conviction. She can hardly repudiate the one result and claim the other.

2. At the close of the argument, and when the jury had retired for deliberation, the following took place in open court:

'Mr. Cohn: We desire to except to the statement made by Mr. Crandall that the defendant has been slowly poisoning the deceased by arsenical poisoning, and this fact was communicated to the attorneys for the defendant, and they, in turn, refused to permit the doctor to testify to his symptoms, as being the highest error that could be committed.

'The Court: The exception is allowed.

'Mr. Cohn: And we further except to the statement that, if the prosecution had been permitted to, they could have shown other evidence, and the further statement meaning the plaintiff had not been permitted to show everything, as being clearly error.

'The Court: The exception is allowed. I do not recall that second statement that you refer to.

'Mr. Cohn: If your honor will recall, that is when I got up and branded it as a falsehood, when he said in all probabilities----

'The Court: Yes; I remember.

'Mr. Miller: And we desire to except to the closing remarks of counsel wherein he spoke of the heinousness of the offense and of the crime and the necessity of the jury performing their duty as the coroner had performed his, the prosecutor his, and they should theirs, as a statement to the jury that the belief of the prosecutor was that the defendant was guilty, and the further numerous statements of the prosecutor as to what he believed the evidence was.

'The Court: The exceptions are allowed.

'Mr. Cohn: Using the expression right in that connection repeatedly throughout his argument that he believed with all his heart certain things.

'Mr. Crandall: The court will not, of course, certify to this without permitting us to offer our amendments?

'The Court: No.

'Mr. Crandall: The exceptions are allowed?

'The Court: The exceptions are allowed.

'Mr. Crandall: We simply want an opportunity when it comes to making up the statement.'

This is all that can be found in the record proper touching the incident.

It will be observed that counsel did not ask for an instruction that the jury disregard the alleged statements; did not ask that the jury be discharged from further consideration of the case; did not claim that the misconduct was so flagrant as not to be cured by an instruction to disregard; but contented himself with a formal exception. Something more than a mere exception is essential. State v. Meyerkamp, 144 P. 942.

It will also be observed that the context and occasion of the offending language is not preserved in the record, nor even what purports to be the exact language used. The prosecuting attorney did not admit its use, nor did the trial judge express any definite opinion on the matter. This phase of the case is ruled by our decision in State v. Jakubowski, 77 Wash. 78, 89, 137 P. 448, 452, where we said:

'This objection is unavailing for two reasons: In the first place, the alleged objectionable remarks were made in the presence of the court. They could have been, and should have been, preserved in the record in context, and certified by the trial judge as actually having been made. As the record stands, the trial judge merely certified that counsel for appellant claimed that they were made, and objected thereto.'

These considerations clearly distinguish this case from the situation presented in Cranford v. O'Shea, 75 Wash. 33, 134 P. 486. There the whole of the offending argument was preserved in the record in its context, and was certified by the trial judge as having been made in so many words. The distinction is too plain to require comment.

It is true...