State v. Morgan, 26779.

• Decision Date: 30 November 1937
• Docket Number: 26779.
• Citation: 73 P.2d 745,192 Wash. 425
• Parties: STATE v. MORGAN.
• Court: Washington Supreme Court

73 P.2d 745

192 Wash. 425

STATE v. MORGAN.

No. 26779.

Supreme Court of Washington

November 30, 1937

Department 2.

Appeal from Superior Court, King County; Kazis Kay, Judge.

Edward F. Morgan, alias Robert Edward Watson, alias Stanley McCormick, alias Allen Arthur McCord, alias Marfield McCormick, alias Colin Campbell, was convicted of grand larceny, and he appeals.

Affirmed.

Will B Lanning, of Seattle, for appellant.

B. Gray Warner and Grant G. Calhoun, both of Seattle, for respondent.

BEALS Justice.

The defendant, Edward F. Morgan, was charged by information with the crime of grand larceny. The information contained three counts, each alleging that the defendant, by means of a trick device and bunco game, procured money in excess of $25 from a person named. The defendant pleaded not guilty, and upon his trial the jury returned a verdict of guilty on each count whereupon the defendant moved for arrest of judgment or in the alternative for a new trial. These motions were denied and from a judgment of guilty entered pursuant to the verdict, and sentence thereon, the defendant has appealed.

Appellant contends that the trial court erred in neglecting to make a preliminary statement of the case to the jurors, and in allowing the prosecutor, Before the jury was regularly impaneled, to make a statement of the case to the jurors and ask general qualifying questions. Appellant also assigns error upon the ruling of the court in allowing the prosecutor, over appellant's objection, to make a formal opening statement to the jury after the jurors were sworn to try the case. Error is also assigned upon the ruling of the trial court refusing to allow appellant's counsel to ask prospective jurors two qualifying questions; upon the denial of appellant's motion to require the prosecuting attorney to present to the court in the absence of the jury certain questions relative to appellant's past history; and upon the overruling of appellant's objection to a question asked appellant on croxx-examination. Appellant also contends that the trial court erred in overruling his objection to a portion of the argument of counsel for the State, and in denying appellant's motion for arrest of judgment or for a new trial.

The evidence is not Before us, appellant relying upon what is in effect a bill of exceptions.

It appears that after twelve prospective jurors had been summoned from the panel, and were seated in the jury box, the trial court allowed the deputy prosecuting attorney to make a statement of the case, informing the members of the jury panel who were present concerning the charge against appellant, and advising them of the names of the witnesses who would be called and of counsel for the respective parties, and also permitting the prosecutor to ask general qualifying questions. To this procedure appellant objected, his objection having been overruled and an exception allowed. In support of his argument on this point, appellant cites as an authority one of the special rules of the superior court for King county, adopted January 30, 1929, which, it is stated, provides that 'the trial judge shall examine the jury touching their qualifications to act as fair and impartial jurors in the case Before him. * * *' Appellant files in this court a purported copy of this rule, and states that the same was adopted January 30, 1929, but the bill of exceptions contains no reference to any such rule, and this court cannot take judicial notice thereof. While it is true that if any such rule is in effect in King county it should be observed, the record Before us does not disclose any basis for appellant's assignment of error. Appellant does not contend that the prosecutor made any incorrect or unfair statement of the case, but relies merely upon the violation of a special rule governing superior court procedure in King county, the record containing no reference to any such rule.

The rule of practice in King county, requiring the trial judge to examine the jury touching their qualifications to act as fair and impartial jurors, while probably good practice, is an innovation upon long-established rules of procedure. Certainly the generally established custom in criminal cases has been that the attorney for the State advises the jury concerning the issues in the case, the names of the parties and the witnesses, and other matters of a general nature which the jurors should know in order that they may intelligently answer more special questions touching their qualifications to act as jurors in the particular case on trial. That such a statement by the attorney for the State may happen to be divided into two portions--one preliminary in its nature, made to the entire panel present; the other special, directed to jurors who have been called to answer on their voir dire--cannot result in prejudice to the accused, in the absence of the employment of unfair tactics by the prosecutor. Nothing of the sort appears in the case at bar. This assignment of error is without merit.

Appellant next contends that the trial court erred in allowing the prosecuting attorney to make a second statement of the case to the jury. As the first statement was very...