State v. Larkin
| Decision Date | 04 September 1924 |
| Docket Number | 18539. |
| Parties | STATE v. LARKIN. |
| Court | Washington Supreme Court |
Department 1.
Appeal from Superior Court, Kittitas County; Griffiths, Judge.
Joe Larkin was convicted of violating a city ordinance, and he appeals. Affirmed.
Snively & Bounds, of Yakima, for appellant.
F. A Kern, of Ellensburg, for the State.
The appellant, Joe Larkin, was charged by a complaint entitled 'In the Police Court of the City of Ellensburg, County of Kittitas, State of Washington, before F. E. Craig, Police Justice,' with having intoxicating liquor in his possession, 'with intent to sell the same, contrary to Ordinance No. 782, and amendments thereto of the said city of Ellensburg, and against the peace and dignity of the state of Washington,' etc. What, if anything, was done with the case in the police court, or how it reached the superior court, the record brought here does not disclose but, except as hereinafter shown, no point is raised on this appeal touching anything preceding the examination of prospective jurors in the superior court.
When reached for trial in the superior court, it appears that this case was the last of a number of liquor cases on the calendar, and that most of the jurors then in attendance had either sat in the liquor cases previously tried, or been examined therein to an extent familiarizing them with the fact that in the whole series of cases the prosecution was relying largely upon the testimony of certain hired and paid investigators, and that to a considerable extent the witnesses, the methods of the investigators, and perhaps other matters as well, were common to all of these cases. The jury box being filled, the prospective jurors were examined on their voir dire by the prosecuting attorney, who propounded to each questions substantially as follows:
'Are you conscious of any prejudice in your mind against testimony of paid detectives that are brought in to obtain evidence in liquor cases?'
Receiving an affirmative answer, the prosecutor proceeded:
'Is that prejudice so strong that you would require corroborative evidence in order to convict?'
This being answered in the affirmative, the juror was challenged for cause. The defense in each instance resisted the challenge, the trial court sustained it, and excused some ten prospective jurors on this showing, and these rulings are the basis of the first error assigned.
The authorities are not uniform upon the question of the propriety of inquiring into such matters, and while it would be interesting to consider the various authorities from other jurisdictions and work out a solution of that question that course is not necessary in this case, and must be postponed to some future time. We say it is unnecessary to consider and answer that question, because each prospective juror so challenged was excused, and did not sit in the case, and it is the settled law of this state that a litigant has no right to have his case tried by any particular juror or jurors, and his only right in that respect is to have his case submitted to a fair and impartial jury. Of course, it is easy to be seen that, while the state was endeavoring to excuse the jurors prejudiced against the testimony of detectives, the defense was directly or indirectly seeking jurors so inclined. A lack of success in that respect was not in any event a denial of a right, and if 12 fair and impartial jurors were obtained, and there is no contention to the contrary, then the rights of the accused were fully accorded him. The general rule is stated in 16 R. C. L. p. 291, as follows:
'A trial by an impartial jury being all that a party can demand, it is a general rule that the erroneous allowance of a challenge for cause is no ground of complaint where a competent and unbiased jury was finally selected.'
We have in effect adopted this rule in State v. Straub, 16 Wash. 111, 47 P. 227, and still more markedly done so in Creech v. Aberdeen, 44 Wash. 72, 87 P. 44, 12 Ann. Cas. 370.
We find no error in the introduction in evidence of liquor which had been in the custody of one other than an officer. The identification appears to have been sufficient, and that is the only essential. The law does not require the custody to be maintained by an officer or any particular person.
The assignment of error based upon the ruling of the court as to the admissibility of evidence sought to be brought out by the cross-examination of the witness Swearingen is without merit. The court advised counsel that he might inquire into anything connected with the case on trial. If that suggestion had been properly followed out, all competent testimony would have been elicited.
The errors assigned upon the sustaining of objections to certain parts of the cross-examination of the witnesses...
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...324, 326, 118 P. 43 (1911) (quoting 1 SEYMOUR D. THOMPSON, A TREATISE ON THE LAW OF TRIALS § 120 (1889) ); see also State v. Larkin, 130 Wash. 531, 533, 228 P. 289 (1924) ("[A] litigant has no right to have his case tried by any particular juror or jurors."); Creech v. City of Aberdeen, 44 ......
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