State v. Knapp

• Decision Date: 04 April 1938
• Docket Number: 26892.
• Citation: 194 Wash. 286,77 P.2d 985
• Parties: STATE v. KNAPP et al.
• Court: Washington Supreme Court

77 P.2d 985

194 Wash. 286

STATE v. KNAPP et al.

No. 26892.

Supreme Court of Washington

April 4, 1938

Department 1.

Appeal from Superior Court, Spokane County; Fred H. Witt, Judge.

Stanley Knapp, alias Ernest Stowell, Leroy Knapp, alias Robert Montgomery, and Herbert Allen, alias Clarence Hoff, were charged by information with murder in the first degree, and the last-named person not being apprehended, the two first named defendants were tried and found guilty with special finding in favor of death penalty, and they appeal.

Affirmed.

Joseph J. Lavin, of Spokane, for appellants.

Ralph E. Foley and A. O. Colburn, both of Spokane, for the State.

MAIN Justice.

Stanley Knapp, alias Ernest Stowell, Leroy Knapp, alias Robert Montgomery, and Herbert Allen, alias Clarence Hoff, were charged by information with murder in the first degree. The case went to trial against the two Knapps, Allen not having been apprehended. The jury returned a verdict of guilty in each case and a special finding in favor of the death penalty. The motion for new trial being made and overruled judgment and sentence were entered, from which the defendants appeal.

February 15, 1937, the appellants and Allen entered the Security State Bank of Spokane for the purpose of robbing it. While in the process of such robbery, a customer, one William E. Walker, entered the bank, was shot by Stanley Knapp, and died later during the same day. The robbers escaped with money in the sum of approximately $4,500. Later, the appellants were arrested in the state of California and returned to Spokane county for trial. When the case came on for trial, counsel for the appellants conceded that they were guilty of murder in the first degree, and that the only question which the jury would be required to pass upon was whether they should be given life imprisonment or whether the death penalty should be imposed.

The appellants make three principal contentions, claiming: (a) That the trial court erred in overruling their motion for new trial, because of alleged misconduct of the deputy prosecuting attorney in his opening argument to the jury; (b) that the court erred in refusing to instruct the jury to disregard the statements made by the deputy prosecuting attorney; and (c) misconduct of the jury.

With reference to the statements made by the deputy prosecuting attorney, counsel for the appellants filed an affidavit setting forth his version of what had been said to the jury. The deputy prosecuting attorney filed an affidavit setting forth his version. The court did not make a finding as to which of the respective statements was true. In the opinion overruling the motion for a new trial, the court said that the statement was with reference to the effect of the imposition of a sentence or penalty of life imprisonment. The language, having been used in the presence of the court whatever the facts were, should have been certified by the court and made a part of the statement of facts. Things that happen in the presence of the court cannot be shown by affidavits. In Loy v. Northern Pacific Railroad Co., 77 Wash. 25, 137 P. 446, 447, it was said: 'On the question of the misconduct of counsel, it appears that the objectionable remarks were made in the presence of the court during the trial and might have been preserved, either by the stenographer or upon request the court itself might have reduced them to writing. This, however, was not done. Upon motion for new trial the defendant's counsel by affidavit set forth his version of the objectionable remarks. The plaintiff's counsel answered denying, and setting forth their version of the same. The trial judge has included both affidavits in the statement of facts but does not certify as to which, if either, correctly contains the substance of the language used. The language having been used in the presence of the court, it should have been certified to by the court and made a part of the statement of facts. To permit such facts to be presented by affidavits gives rise to an unseemly contest between counsel upon matters that occurred in open court during the progress of the trial, and in the interest of orderly procedure should not be tolerated. The objectionable language not having been preserved in the statement of facts, it cannot here be reviewed.'

The cases of State v. Johnston, 83 Wash. 1, 144 P. 944, and State v. Brady, 138 Wash. 421, 244 P. 675, express the same view.

However, it is admitted by the respondent that the deputy prosecuting attorney, in his opening argument to the jury, said, in effect, that it was a matter of common knowledge that life sentences mean only ten or twelve years in prison.

In the case of State v. Stratton, 170 Wash. 666, 17 P.2d 621, 624, it was held that similar and more damaging remarks along the same line did not constitute reversible error. It is said, however, that the remarks in that case were not objected to by the defendant, while, in the case now Before us, counsel for the appellants objected to the language and moved the court to instruct the jury to disregard it. It is true that, in the Stratton Case, no objection was taken to the argument or a request made to the court to instruct the jury to disregard it, and it was said that that was necessary in order to have it reviewed unless it amounted to misconduct so flagrant that an instruction would not cure it. The court notwithstanding this, went further in that case and, in effect, held, on the merits, that the reference to the ordinary length of life sentences was not prejudicial. It was said: 'The suggestion that the law prohibits the parole of a life prisoner may be dismissed in our consideration of the case because if the jury knew that they would, of course, pay no attention to it. But suppose ...