State v. Lane
| Decision Date | 22 September 1950 |
| Docket Number | 31243. |
| Citation | 37 Wn.2d 145,222 P.2d 394 |
| Court | Washington Supreme Court |
| Parties | STATE, v. LANE. |
Deane W. Parker, William S. Lewis, Seattle, for appellant.
Charles O Carroll, John C. Vertrees, Seattle, for respondent.
The above-entitled cause was argued to a department of this court March 7, 1950 and an opinion was written, Wash. 217 P.2d 322. The conviction of the appellant under count I of the amended information, charging him with the crime of forcible rape was reversed and the cause remanded for a new trial, but through inadvertence, we failed to consider and determine the questions presented upon appellant's appeal from his conviction of the crime of burglary in the second degree as charged by count II of the amended information.
A petition for rehearing filed by respondent was granted, and the cause reargued Before the court, sitting En Banc. The court adheres to the opinion filed, in so far as count I of the amended information is concerned.
The two crimes with which appellant was charged were committed at the same time and place and, in so far as the facts concerning the crime charged by count II of the amended information are stated in our prior opinion, they will not be here repeated.
Appellant's assignments of error are also stated in our prior opinion, in which his assignment No. 6 was the only one discussed, as it was held that that assignment required reversal of appellant's conviction under count I.
We shall consider the questions presented by appellant upon his appeal from the judgment of guilty of count II of the amended information charging him with the crime of burglary in the second degree, committed July 4, 1949, by unlawfully and feloniously, with intent to commit a crime therein, breaking and entering the dwelling of Mrs. ..... in Seattle, King county, Washington.
By assignment of error No. 1, appellant argues that the jury was not sworn to try the issues between the state and appellant, as to the crimes charged in the amended information. The crimes with which appellant was charged were committed July 4, 1949. Appellant was promptly arrested and an information charging him with the crimes was filed July 7, 1949. July 8th, on motion of the prosecuting attorney, an order was entered allowing the information to be amended, and an amended information was filed that day. The first information filed charged that the crimes were committed June 4, 1949, and, by the amended information, it was charged that the crimes were committed July 4th. July 12th, the appellant was arraigned 'on information filed,' and, July 19th, he entered a plea of not guilty as to both counts, and also filed a plea of insanity. Later, appellant, in open court, in the absence of the jury, formally withdrew his plea of insanity.
September 12th, the case was called for trial, appellant being represented by counsel, a jury was impaneled and sworn, and an opening statement made on behalf of the prosecution. Appellant's counsel requested that the jury be excused, and the jury withdrew.
Appellant's counsel stated that the prosecution had told the jury that the crime was committed July 4th, when the certified copy of the information which had been served upon appellant charged that the crime had been committed June 4th. Appellant's counsel stated that no amended information had been served upon appellant and that each of the two counts, as presented to the jury, was subject to demurrer, as the information served upon appellant charged that the crimes were committed June 4th, and for the further reason that, as to the second count, the information did not charge that the alleged burglarious entry was made with the intent to commit a crime.
The trial court asked appellant's counsel whether or not appellant had been advised that he was to be tried upon an amended information. Appellant's counsel claimed his privilege and refused to answer this question. Appellant contends that, when he was arraigned, only the original information was read to him. Being further questioned by the court, appellant's counsel did not claim surprise, but stood upon the proposition that the record showed that appellant was arraigned upon the 'information filed.' Appellant's counsel then stated that appellant was in court prepared to defend against the amended information. The trial court ruled that appellant should be arraigned upon the amended information, and said:
The prosecuting attorney, in the absence of the jury, then commenced to read the amended information to the appellant, whereupon the latter's counsel stated that the trial had commenced, a jury had been impaneled, and that appellant was now being put upon his trial on another information. The trial court ordered the reading of the amended information to continue, and a copy thereof was served upon appellant. The court stated that the record showed that appellant was Before the court pursuant to a warrant issued upon the amended information. When the trial court called upon appellant to plead to the amended information, he stood mute, and the court directed that pleas of not guilty be entered on his behalf, and stated that appellant had withdrawn his written plea of mental irresponsibility.
The trial court then stated to appellant's counsel, 'I still will ask you the question: you do not ask for a continuance of this trial?' to which appellant's counsel replied: 'I do not ask for a continuance of this trial.'
The court declared a recess and, shortly thereafter, the jury returned and the trial proceeded.
During the course of the trial, ample evidence was introduced by the prosecution, without objection by appellant, to the effect that the offenses were committed July 4, 1949.
Mrs. ..... testified that a little after ten o'clock in the evening of July 4, 1949, she was alone in her home, when the doorbell rang and she went to the door and called, 'Who is it?' but, as she was expecting her husband, she opened the door; that appellant jumped up on the porch and said, 'Is your husband home?' to which she replied, 'No, he isn't but he'll be in any minute.'; that appellant pushed her aside, forced his way into the house and closed the door; that she screamed when appellant started to pull down the shades; and that appellant then placed his hand over her mouth and knocked her down.
She further testified (without objection) that she screamed again when appellant choked her and struck her; that appellant removed what money she had in her wallet and then attacked her and committed the crime with which he was charged by count I of the amended information. The evidence amply supports the verdicts of guilty on both counts.
Appellant argues that the jury was sworn to try him upon the information and not upon the amended information, and that, as at that time there was no issue on the amended information, the jury was not authorized to try appellant thereon.
A very similar question was presented, inter alia, to this court in the case of State v. Nilnch, 131 Wash. 344, 230 P. 129, in which we said:
In the case cited, it appeared that the jury was impaneled and sworn prior to the arraignment of the defendant. The only difference between the case cited and the case at bar is that, in the latter case, appellant was arraigned upon an amended information instead of upon the original information. The difference between the two cases is unimportant and, upon the authority of the case cited, appellant's first assignment of error is without merit.
By his second assignment of error, appellant argues that, prior to assuming charge of the jury, the bailiff was not sworn to perform the duties of his office, citing in support of his contention State v. Barkuloo, 18 Wash. 141, 51 P. 350, in which, referring to one of the assignments of error, this court said: '* * * The statement that the jury retired in charge of a sworn bailiff is sufficient to show that the bailiff was duly sworn.'
In the case at bar the record is silent...
To continue reading
Request your trial
-
State v. Kier
...is not sufficient to trigger application of the rule of lenity. The possibility must also be realistic. ¶ 41 State v. Lane, 37 Wash.2d 145, 152, 222 P.2d 394 (1950) adopted this approach. "`The jury's intent is to be arrived at by regarding the verdict liberally, with all reasonable intendm......
-
State v. Case
...it, and had taken exception to the court's refusal to do so. State v. Taylor, 1955, 47 Wash.2d 213, 287 P.2d 298; State v. Lane, 1950, 37 Wash.2d 145, 222 P.2d 394; State v. Perry, supra; State v. McWhinney, 1945, 23 Wash.2d 334, 161 P.2d 162; State v. Wright, 1939, 199 Wash. 521, 92 P.2d 2......
-
State v. Montague
...the delay in the service of the warrant for arrest on the felony charge or the delay in his arraignment on that charge. State v. Lane, 37 Wash.2d 145, 222 P.2d 394 (1950); State v. Manning, 57 Wash.2d 327, 356 P.2d 721 (1960); State v. Thompson, 58 Wash.2d 598, 364 P.2d 527 (1961); Draper v......
-
Draper v. Rhay
...and twelve days after filing of the information." State v. Manning, 57 Wash. 2d 327, 329, 356 P.2d 721, 722 (1960). In State v. Lane, 37 Wash.2d 145, 222 P.2d 394 (1950), the defendant was arrested on July 4. He was arraigned on September 12 following, which was after the jury had been empa......