State v. Pavelich

• Decision Date: 31 December 1928
• Docket Number: 21167.
• Citation: 150 Wash. 411,273 P. 182
• Parties: STATE v. PAVELICH et al.
• Court: Washington Supreme Court

273 P. 182

150 Wash. 411

STATE v. PAVELICH et al.

No. 21167.

Supreme Court of Washington

December 31, 1928

Department 2.

Appeal from Superior Court, Spokane County; Fred H. Witt, Judge.

John Pavelich and Mike Chatovich were convicted of the crime of being jointists, and they appeal. Affirmed as to defendant last named, and otherwise reversed and remanded for a new trial.

Edward M. Connelly and Joseph A. Albi, both of Spokane, for appellants.

Chas W. Greenough and Frank Funkhouser, both of Spokane, for the State.

HOLCOMB, J.

Appellants were prosecuted and convicted of the crime of being jointists. Motions in arrest of judgment and for a new trial were denied, and they were each sentenced to indeterminate terms of imprisonment in the state penitentiary.

At the proper time during the trial of the case appellant Pavelich through his counsel, requested an instruction (No. 6) as follows: 'You are instructed that you are to draw no inference of guilt against the defendant John Pavelich because he was not testified as a witness in his own behalf. As heretofore stated in these instructions, he is presumed innocent of any crime and this presumption remains with him throughout the trial, until and unless, the state proves his built to the jury's satisfaction beyond a reasonable doubt. He is free to testify or not as witness in his own behalf but no presumption or inference of guilt from his refusal or failure to testify is to be indulged by you.'

During the trial, in arguing the case to the jury the deputy prosecuting attorney trying the case made the following statements and argument: 'Now, we have Pavelich connected up, and we have got Wagner that testified that he had been seeing this man lock this place up around midnight. Pavelich locked this place up. One of the witnesses says he locked it up when he let the man out when he brought out the suit cases--co-operating and conducting with gallon jugs in the basement--undisputed--fill up the empty bottles themselves and wash them up, bring them in in jugs, bring them in in loads, bring them in in suit cases. Pavelich did this Pavelich brings that out of the basement, Pavelich turned that over to some one else and let him out the door with it. Now, that is undisputed. Pavelich locks the place up. Pavelich says he has not worked--three days he worked, three days in either January or February, and has not done a tap of work since except be around the Montana bar or Standard bar 230 North Washington Street. That is all Pavelich has done--and driven a Lincoln automobile. Do you? I would like to see the hands of this man that cannot work and drives a Lincoln automobile. Now, those are Pavelich's own statements, undisputed and uncontradicted. He told that to the officers. He told it in my presence, and it is not denied--undisputed. He goes down there in the morning.'

At this point counsel for appellant objected to the statements being made by counsel and asked the court to advise the attorney for the state to make no such comment as to what Pavelich did or did not deny in the case. The trial judge asked if the objection was based on Rem. Comp. Stat. § 2148, to the effect that no inference of guilt should be arrived at from the fact that the defendant did not testify. Counsel replied that it was. Thereupon the deputy prosecuting attorney announced that he would withdraw the statement. Counsel for appellant asserted that that would not cure it, and then further moved to strike it from the record and that the jury be instructed to disregard it and the prosecutor instructed not to make the statement again.

The court denied the motion and request of counsel for appellant upon the ground that section 1, rule 9 of the Rules of Pleading, Procedure, and Practice adopted by this court on January 14, 1927, abrogated that part of section 2148, supra, reading as follows: 'And provided further, that it shall be the duty of the court to instruct the jury that no inference of guilt shall arise against the accused if the accused shall fail or refuse to testify as a witness in his or her own behalf.' And therefore counsel for the state had the right to comment on the failure of the defendant to testify.

Some further remarks were made by the deputy prosecuting attorney in his closing argument referring to undisputed testimony of the state which we do consider prejudicial or material.

Upon appeal appellant Pavelich assigns as errors the refusal to give the requested instruction above quoted, the permission by the court to the prosecutor to comment on his failure to testify against the objection of appellant; and both appellants assign as error the denial of their motion to instruct the jury to bring in a verdict of not guilty, or to dismiss the prosecution against them.

Having examined the record, we are convinced that there was evidence sufficient to go to the jury as to both appellants; and as to appellant Chatovich there was no error in the submission of the case to the jury. As to him, there being sufficient evidence to warrant a verdict of guilty and no error in the trial, the judgment is affirmed.

Upon the other two assignments of error on behalf of appellant Pavelich, much learned and elaborate argument is presented against the power of this court to abrogate the statute, section 2148, supra, or any other substantive law, or to make any other rules under our Constitution than this court has inherent power to make for the administration of its own business.

The questions so presented are foreclosed by our decision in State ex rel. Foster-Wyman Lumber Co. et al. v. Superior Court (Wash.) 267 P. 770. While we are urgently requested so to do, we do not consider that to examine the question further would be useful.

The new, interesting, and important question is, however, raised in this case as to whether the trial court erred in refusing requested instruction No. 6 of appellant Pavelich, notwithstanding a portion of the statute, section 2148, supra, heretofore referred to, has been abrogated by subdivision 1, rule 9 of this court.

Article 1, § 9, of the Constitution provides: 'No person shall be compelled in any criminal case to give evidence against himself, or be twice put in jeopardy for the same offense.'

Section 2148, among other things, originally provided that the defendant 'may, in the examination or trial of the cause, offer himself, or herself, as a witness in his or her own behalf, and shall be allowed to testify as other witnesses in such case, and when accused shall so testify, he or she shall be subject to all the rules of law relating to cross-examination of other witnesses: Provided, that nothing in this code shall be construed to compel such accused person to offer himself or herself as a witness in such case: And provided further, that it shall be the duty of the court to instruct the jury that no inference of guilt shall arise against the accused if the accused shall fail or refuse to testify as a witness in his or her own behalf.'

The constitutional provision above quoted would, of course, be self-executing without any legislative restatement. The statute which remained in force after the adoption of the Constitution was, of course, but a legislative protection to the accused in criminal cases already afforded by the Constitution. The statute went further, however, and in a purely procedural way provided for the court to instruct the jury that no inference of guilt should arise against the accused if he fail to testify in his own behalf, From an early time under the statute, as it existed before the Constitution was adopted, this court held that where the defendant in a prosecution was not sworn as a witness in his own behalf, it was error for the court not to instruct the jury that from such fact no inference of guilt should be drawn against the defendant, and that the fact that the defendant remained silent did not amount to a waiver of such right. Linbeck v. State, 1 Wash. 336, 25 P. 452.

The court there held that it was the duty of the court to give such instruction because of the last proviso of the statute in question unless waived by some express...