State v. Mann

• Decision Date: 10 July 1905
• Citation: 39 Wash. 144,81 P. 561
• Parties: STATE v. MANN.
• Court: Washington Supreme Court

81 P. 561

39 Wash. 144

STATE v. MANN.

Supreme Court of Washington

July 10, 1905

Appeal from Superior Court, Lewis County; W. O. Chapman, Judge.

John Mann was convicted of arson, and appeals. Affirmed.

Frank Burch and George E. Rhodes, for appellant.

J. R Buxton and C. H. Forney, for the State.

FULLERTON J.

The appellant and one Nettie Mann were jointly informed against for the crime of arson, the charging part of the information being as follows: 'She, the said Nettie Mann, in Lewis county, state of Washington, on, to wit, the 17 day of August, A. D. 1904, and within three years prior to the filing of this information, in the county of Lewis, state of Washington, did then and there feloniously, unlawfully willfully, and maliciously set fire to and burn that certain two-story house building situate in the city of Centralia Lewis county, Washington, the property of others, to wit Thomas Cooling and Sarah Cooling; said two story house building being then and there occupied by the said Nettie Mann and John Mann, and he, the said John Mann, though not personally present at the time said building was fired, did in manner and form aforesaid, unlawfully, feloniously, willfully, and maliciously procure, aid, counsel, incite, command, and abet the said Nettie Mann to so unlawfully, feloniously, willfully, and maliciously fire and burn the said two story building; contrary,' etc. On being arraigned, the accused pleaded not guilty, and demanded separate trials, which was granted them by the court. The state elected to try the appellant first, and his trial resulted in a verdict and judgment of guilty, from which he appeals to this court.

Taking up the errors assigned in the order they are discussed in the brief of appellant, the first to be noticed is the contention that the court erred in excluding Nettie Mann from the courtroom during the opening statement to the jury made by the prosecuting attorney. From the record it appears that after the jury had been impaneled and sworn the prosecuting attorney moved that all of the witnesses, both for the state and for the defendant, be excluded from the courtroom during the trial. Among the witnesses for the state whose names were indorsed on the information was Nettie Mann. The appellant's counsel called attention to this fact, and asked that the rule of exclusion be so modified as not to include her. After some colloquy between the appellant's counsel and the court, the court stated, although no objection to her remaining was made on the part of the state's counsel, that the rule applied to her as well as to all of the other witnesses, and she was taken from the courtroom by the officers who had her in charge, she being then in custody. The prosecuting attorney thereupon made his opening statement to the jury, at the conclusion of which the court announced that in view of the opening statement he would modify his ruling in regard to the exclusion of witnesses in so far as to permit Nettie Mann to be present in the courtroom during the trial if she so desired. She was thereupon brought into the courtroom, and the trial was proceeded with by the introduction of testimony on the part of the state. This is all that the record shows regarding the matter, but the appellant says that the purpose of the prosecuting attorney in indorsing the name of Mrs. Mann on the information was to enable him to invoke the rule of exclusion against her, and thus deprive him of the benefit of her assistance while on his trial, and he argues that this court ought to set its seal of disapproval on such conduct by refusing to permit a conviction to stand where such a course has been pursued. But we are unable to find in the record anything which justifies this animadversion on the prosecuting attorney. His conduct seems to us in no wise blamable. He did not insist that the witness be excluded, nor did he debate the question, but left it entirely to the discretion of the trial court on the reasons urged by the appellant's counsel. He not only had the right to indorse the name of Mrs. Mann on the information, but, if he believed that she would prove a material witness for the state, it was his duty to do so. There can be, therefore, no ground for the claim that the appellant was prejudiced by the conduct of the prosecuting officer. Nor was the ruling otherwise erroneous. Whether or not any particular witness shall remain in the courtroom pending the trial of a criminal cause rests in the sound discretion of the trial court, to be reviewed only for an abuse of such discretion. Here it is not even claimed that the appellant was in any manner prejudiced by the action of the court, and it is idle to say that such action is ground for reversal.

It is next assigned that the court erred in refusing to sustain the appellant's objection to the introduction of any evidence by the state on the ground that the information did not state facts sufficient to constitute a crime. The objection to the information is that it necessarily charges a conspiracy, and that, as the defendants were shown to be husband and wife, they could not be guilty of a conspiracy. But we think the appellant is mistaken as to the charge contained in the information. The information charges a consummated offense, not a conspiracy to commit an offense. And while it may be true that a husband and wife cannot be convicted of having conspired together to commit an offense, yet if they commit an indictable offense, although the offense is the result of a conspiracy on their part, they can be tried and convicted for the consummated offense.

A Mr. Drummond, while on the witness stand for the state, was asked concerning a certain insurance policy issued on the goods of the appellant, and testified to the effect that he had issued a policy on such goods as agent of a New Hampshire company, and that he had kept a record of the policy, as was his custom. He was then asked if he could state, independent of his record, how the insurance was divided on the different articles insured. On answering that he could, he was told to so state. To this the appellant objected on the ground that the record he had kept of the policy was the best evidence. The court overruled the objection, and permitted the witness to answer. This ruling is assigned as error. As this question called for the contents of the insurance policy, it is plain that, as between the witness' memory of what it contained and the memoranda of its contents made by him, his memory was the best evidence, even though he had been compelled to use his memoranda to refresh his memory. But perhaps the real objection is that the policy itself furnishes the best evidence of its contents. If, however, we concede that this objection was made, it does not follow that it was error to admit the evidence. The policy was in the possession of the appellant, and secondary evidence of its contents was admissible after he had been served with notice to produce it and had failed to do so. State v. McCauley, 17 Wash. 88, 49 P. 221, 51 P. 382.

During the cross-examination of witness Rhodes he was asked the following question: 'Are you not the notorious Tuck Rhodes who was tarred and feathered at Gray's Harbor and run out of the country?' To this question the state interposed an objection, which was sustained by the trial court. There was no error in the court's ruling. While the latitude permitted a cross-examiner is extensive, it has its limitations. We think it would be too much to say that its bounds extended to questions of this character.

The state was permitted to show that the appellant caused to be shipped by rail from the city of Centralia to the city of Tacoma certain trunks and boxes, which were found to contain merchandise taken from the building which was afterwards burned. Certain of these shipments were made some seven days before the fire occurred, and certain others some five days before that time, and it is urged that these times were too remote from the time of the fire to render the testimony admissible. But we think the objection unfounded. The evidence was admissible as tending to show motive and to connect the appellant with the crime charged. The remoteness of the removal of the goods from the time of the fire might tend to lessen its probative effect, but that was a question for the jury. It did not tend to render the evidence itself inadmissible.

The court permitted the state to show certain inculpatory statements made by the appellant concerning the crime charged against him to the officers who had him in custody. It is alleged that this was error, because it was...