State v. Polos

• Decision Date: 05 October 1926
• Docket Number: 19842.
• Parties: STATE v. POLOS.
• Court: Washington Supreme Court

249 P. 488

140 Wash. 399

STATE v. POLOS.

No. 19842.

Supreme Court of Washington

October 5, 1926

Department 2.

Appeal from Superior Court, Jefferson County; Ralston, Judge.

George Polos was convicted of bootlegging, and he appeals. Affirmed.

A. R Coleman, of Port Townsend, for appellant.

A Henry Packard, of Port Townsend, for the State.

MITCHELL J.

George Polos was informed against, tried, and convicted of the crime of bootlegging. He has appealed.

He was arrested by a deputy sheriff on a county road in Jefferson county. He was driving an automobile loaded with whisky. Within a few minutes after the arrest he escaped from the deputy sheriff or rather from one the deputy sheriff had placed him with, and was recaptured within a few hours by the sheriff who had been called to assist the deputy. The matter of identifying the appellant at the trial as the person arrested was involved in the examination of the deputy sheriff as a witness. On direct examination, he testified that the one arrested was then in the courtroom, and that he thought Mr. Polos was the man. On cross-examination, he was asked if he would say positively that the defendant was the man, to which answer was made 'He looks like the man to me.' The same question was repeated, and the same answer given. Again the same question was asked, causing a colloquy between counsel and the court, in which the court said that all a witness could testify to is to the best of his knowledge, and that he had stated over and over again his viewpoint. Counsel replied, 'I know he has, but he has not answered my question fully.' The court said, 'I think he has; he has stated to the best of his knowledge, and that is all any man can do.' Counsel took an exception to the court's ruling and remark. The same question was again asked with the request that it be answered 'Yes' or 'No.' Upon objection by the state as being useless repetition, the court directed the witness, 'Answer the question to the best of your knowledge; that is all any one can do.' Counsel again took an exception to the ruling and remark. Then the following occurred:

'A. Well, I will say again that I think he was the man.

'Q. Well, I repeat my question again, can you be positive of it, absolutely? A. I had never seen the man before, and I only saw him three or four minutes, and he looks like the man. He got away from me, and got into the woods, and I cannot absolutely swear, but he looks like the man to me.'

The contention of appellant is that the court violated the provision of the Constitution, art. 4, § 16, which reads:

'Judges shall not charge juries with respect to matters of fact, nor comment thereon, but shall declare the law.'

The scope and purpose of this provision of the Constitution was clearly stated in State v. Surry, 23 Wash. 655, 63 P. 557, wherein, upon referring to State v. Walters, 7 Wash. 246, 34 P. 938, 1098, and State v. Hyde, 20 Wash. 234, 55 P. 49, it was said:

'In both of these cases it will be observed the objectionable remarks were addressed to the jury, and hence were literally violative of the mandate of the Constitution. Here the case is different; the observations objected to having been directed to counsel. We do not, however, wish to be understood as holding that a judge, under this provision, is at liberty, during the progress of a trial, to comment in the presence of the jury on the facts which the jury must determine, in a way calculated to influence their action; yet it is manifest, from the language of the Constitution, that its primary and special object was to prevent comments on the facts in evidence in connection with the instructions by which the jury are to be guided, and at a time when such comments would be likely to affect their minds. Prior to the adoption of the Constitution, it was said to be the

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