State v. Phillips

• Decision Date: 13 October 1911
• Citation: 65 Wash. 324,118 P. 43
• Court: Washington Supreme Court
• Parties: STATE v. PHILLIPS.

118 P. 43

65 Wash. 324

STATE v. PHILLIPS.

Supreme Court of Washington

October 13, 1911

Department 2. Appeal from Superior Court, Okanogan County; John D Hinkle, Judge.

Charles Phillips was convicted of murder in the second decree, and he appeals. Affirmed.

E Fitzgerald and Robertson & Miller, for appellant.

William C. Brown, for the State.

CROW J.

The defendant, Charles Phillips, was convicted of murder in the second degree, and has appealed from the judgment and sentence entered upon the verdict.

This case has heretofore been in this court, and a new trial was granted after appellant's former conviction of murder in the second degree. State v. Phillips, 59 Wash. 252, 109 P. 1047. After remittitur and on October 7 1910, the prosecuting attorney filed an amended information predicated upon the same homicide, charging murder in the second degree. Appellant's former conviction was upon an information charging murder in the first degree. On October 20, 1910, appellant was arraigned on the amended information, in the absence of his counsel, and pleaded not guilty. The record, however, shows that on October 21, 1910, appellant and his counsel being in court, the trial judge advised appellant's counsel that on the previous day he had been arraigned on the amended information charging murder in the second degree; that he had pleaded not guilty; that such plea had been taken, subject to his right to withdraw it and interpose any demurrer, motion, or other plea. Appellant's counsel thereupon announced he did not care to withdraw the plea of not guilty; that he did not wish to demur to or move against the amended information, but that he might move for a change of venue. Thereupon the state suggested that, as counsel for appellant was present, the appellant be asked by the court whether he reaffirmed his plea of not guilty, and appellant replied he did. No question as to the sufficiency or regularity of the amended information was raised until the jury had been impaneled, respondent's counsel had made his opening statement, and the state had called a witness to testify. Thereupon appellant interposed an objection to the introduction of evidence, on the ground that no complaint or information recognized by law was on file, upon which he could be tried, the substance of his contention being that an amended information could not be filed in a criminal action; that, if the state did not intend to rely upon the original information, it should have entered a nolle prosequi and then should have filed a new and original information. This objection was overruled. After verdict, appellant interposed, and the trial court denied, his motion in arrest of judgment, under which he renewed the same objection.

Numerous assignments of error have been presented, many of which, especially those predicated upon rulings upon the admissibility of evidence, are too technical to justify discussion. In numerous instances appellant, referring to certain pages of the statement of facts, contends error was committed in excluding evidence; but an examination of the record discloses the fact that the evidence was later admitted, and that, if error was committed, it was then committed, and was error prejudicial to the state only, of which appellant cannot complain. We find no rulings on evidence prejudicial to appellant.

Appellant contends the trial court erred in sustaining a challenge for cause to one Delanger, called and examined upon his voir dire touching his qualifications as a juror. The examination disclosed he was a Frenchman, a native of Canada; that he and his father came to the United States when he was about 17 years of age; that he declared his intention of becoming a citizen of the United States by taking out first papers in the year 1888; that no final certificate of citizenship had been issued to him; that his father had voted in 1884, but that he had no knowledge as to whether his father had been naturalized. The citizenship of the juror was sufficiently doubtful to justify the trial judge in sustaining the challenge. No prejudice to appellant has been shown, although he exercised all of his peremptory challenges. It does not appear that a fair and impartial jury was not secured.

The appellant had no vested right in any particular juror. 'No party can acquire a vested right to have a particular member of the panel sit upon the trial of his cause, until he has been accepted and sworn. It is enough that it appear that his cause has been tried by an impartial jury. It is no ground of exception that, against his objection, a juror was rejected by the court upon insufficient grounds, unless through rejecting qualified persons, the necessity of accepting others not qualified has been purposely created. Thus, in the process of impaneling, no party is entitled, as of right, to have the first juror sit who has the statutory qualifications, though there are authorities to the contrary, chiefly based on exaggerated views of the rights of the accused in criminal trials. But this is on principle quite untenable, since, if the prisoner has been tried by an impartial jury, it would be nonsense to grant a new trial or a venire de novo upon this ground, in order that he might be again tried by another impartial jury.' 1 Thompson on Trials, § 120. '* * * A distinction can very properly be made between the ruling of a judge, who declares a juror competent against the challenge of the accused, and forces him on the jury against the protest of the accused, and the case where he declines to let one serve on the jury whom the accused may want there. In the one case, the juror, who is forced on the accused, may not only, on account of previous bias, prevent his acquittal, but secure his conviction; whilst in the other case it is to be presumed that the juror chosen in the place of the one rejected is an impartial juror, such as the law requires; and in this case there is no complaint that the juror chosen in the place of the one excluded was not in every way competent. And if, notwithstanding the exclusion of the juror that the accused was anxious to have, a fair and impartial jury was obtained, and we find no charge that it was not so, surely we cannot conclude that the accused was so seriously injured by the ruling as to entitle him to a new trial, or, in fact, that anything whatever was...