State v. Parker

• Citation: 25 Wash. 405,65 P. 776
• Parties: STATE v. PARKER.
• Decision Date: 01 July 1901
• Court: United States State Supreme Court of Washington

65 P. 776

25 Wash. 405

STATE v. PARKER.

Supreme Court of Washington

July 1, 1901

Appeal from superior court, King county; E. D. Benson, Judge.

L Parker was convicted of grand larceny, and he appeals. Reversed.

Silas M. Shipley and Morris & Southard, for appellant.

Walter S. Fulton and John B. Hart, for the State.

HADLEY J.

This cause is a prosecution by the state of Washington against the appellant on a charge of grand larceny. The cause was submitted to a jury, and a verdict of guilty as charged returned. A motion for a new trial was overruled, and appellant was sentenced to serve a term of 10 years in the penitentiary, from which judgment he has appealed to this court. It is assigned as error that the court permitted the jury to separate during the trial. The appellant's affidavit in support of the motion for new trial states the following: 'Affiant further says that during the trial of said cause, after the testimony was all in and the argument partially completed, at the hour of adjournment of court about 5 o'clock p. m. of May 18, 1900, one of the jurors before whom said cause was being tried stated to the court that his daughter was very sick at his home in Renton, about twelve miles distant from Seattle, and asked permission to go home to see her; that the court, in the presence of said juror, after stating the above facts to this affiant, who was then upon trial, and in the hearing of said juror, asked this affiant and defendant herein if he had any objection to the granting of said juror's request, and that this affiant, through fear of prejudicing said juror against himself, stated in reply thereto that he did not object provided his attorneys would not, and further suggested that some officer go with said juror; that subsequently, on the statement being made to affiant by his attorneys that he would prejudice said juror by insisting on an officer accompanying him, affiant consented in open court to the request of said juror, who was subsequently permitted to separate himself from the rest of the jury, and was given a leave of absence until the hour of 2 p. m. of May 19, 1900 that said juror subsequently separated himself from said jury, and remained separate and apart from the balance of the jury during said period, and was not during said time in the custody of any officer of the court; and that said juror subsequently united in the verdict to convict this affiant. Affiant says that his consent to the separation of said jury was not freely and voluntarily given, by reason of the manner in which he was induced to grant the same, and that affiant was prejudiced thereby.'

Section 6947, Ballinger's Ann. Codes & St., provides as follows: 'Juries in criminal cases shall not be allowed to separate except by consent of the defendant and the prosecuting attorney, but shall be kept together without meat or drink unless otherwise ordered by the court, to be furnished at the expense of the county.' It appears from the record that, prior to the time the request mentioned in the above affidavit was made by the juror, the jury had not separated. At the time of each adjournment of the court during the progress of the trial the jury were placed in the charge of sworn officers, and when the request of the one juror was granted the remaining jurors were still kept together and in charge of officers. The conditions presented are somewhat anomalous. It is a common practice of trial courts to permit juries in ordinary criminal cases to separate at all intermissions of the court during the progress of the trial, when the defendant and prosecuting attorney have consented to such separation; but this course is usually adopted at the beginning of the trial, or at the first adjournment of the court thereafter, and therefore becomes the established rule of the trial. In this case the rule of keeping the jury together was pursued, and when the trial had continued for two days, and after all the evidence had been submitted to the jury, and while the argument of counsel was progressing, the request for the separation was made, and the one juror was permitted to withdraw from the presence of the remainder of the jury from 5 o'clock p. m. of one day until 2 o'clock p. m. of the following day. The circumstances at the time the juror made his request and the granting thereof by the court, as set forth in appellant's affidavit, are not denied in the record. The state filed no counter affidavits. The appellant states in his affidavit that he consented in open court that the juror's request be granted, but suggested that an officer go with him. Subsequently, on the statement of his counsel that he would prejudice the juror against him by insisting upon the attendance of an officer, he gave his consent. The appellant was placed in a very trying position before the jury, and one which we believe should not have been forced upon him at that stage of the trial, particularly in view of the fact that no separation of the jury had theretofore occurred. The embarrassing situation might have been relieved by a private consultation between the court, the prosecuting attorney, and appellant and his counsel. Or the jury might have been asked to retire for a short time pending the consideration of the matter. If, then, free consent to the separation had not been given, the jury would have simply been informed that for legal reasons the request of the juror could not be granted, and thereby no prejudice could have arisen in the mind of the juror against either party. For humane reasons, and in order to relieve any apprehension in the mind of the juror concerning his sick daughter, an officer might have been sent to make inquiry, if consent to the separation had not been freely and voluntarily given. Undoubtedly the consent contemplated by the statute must be free and voluntary, and not such as may be said to be forced from a defendant or from the state by reason of circumstances occurring in the presence of the jury. In State v. Holedger, 15 Wash. 443, 448, 46 P. 652, this court said: 'The appellant complains in his nonth assignment that the court erred in asking counsel for appellant in the presence and hearing of the jury, if they had any objection to the separation of the jury. In the absence of any proof to the effect that the appellant was prejudiced in any way by the action of the court, we do not feel like reversing a case on this ground alone; but we desire to take occasion to say that, considering the difficulty of making such a showing of injury by the party who claims to be aggrieved, we think it is a practice which should not be indulged in by trial courts, because, as appellant complains, if they did entertain any objection to the separation of the jury they were called upon to so state in the presence of the jury, and would thereby run the risk of incurring the displeasure of some juror. The court could very easily call counsel to him, and ascertain privately, and without the knowledge of the jury, whether there were any objections to their separation.' The court refused to reverse the judgment in the above case, but sounded a significant note of warning to trial courts not to indulge the practice which was adopted in that case. If the case at bar stood upon an equality with the former case, we should doubtless decline to reverse it under this assignment of error, notwithstanding the admonition given in the former case. But here the trial had proceeded for two days without a separation of the jury, and when the case was almost ready to submit to the jury the appellant was required to say, in the presence of the juror who was asking a personal favor, whether he was willing to grant it or not. The jury could not legally separate without the consent of the appellant, and we believe from the showing here that he did not voluntarily consent, within the meaning of the statute, and we therefore think the court erred in this particular.

It is also assigned as error that the court erred in refusing to grant a new trial because of misconduct of the jury. In support of this branch of the motion for a new trial the affidavits of two jurors were filed. The affidavit of one Hutton, among other things, states that a juror by the name of Hempy made the following statements to the jury during the consideration of the case in the jury room, to wit: 'That he knew Parker was equally guilty with Collins, because they were both members of a gang of toughs who had, prior to the date of the crime alleged herein, occupied a shack in...