State v. Rasmussen, 17797.

• Court: United States State Supreme Court of Washington
• Writing for the Court: PARKER, J.
• Citation: 215 P. 332,125 Wash. 176
• Parties: STATE v. RASMUSSEN.
• Decision Date: 18 May 1923
• Docket Number: 17797.

215 P. 332

125 Wash. 176

STATE
v.
RASMUSSEN.

No. 17797.

Supreme Court of Washington

May 18, 1923

Department 2.

Appeal from Superior Court, Skagit County; Augustus Brawley, Judge.

Jens Rasmussen was convicted of a felony, and he appeals. Reversed and remanded, with directions.

Shranger & Henderson, of Mt. Vernon, for appellant.

Warren J. Gilbert, W. H. Hodge, and W. L. Brickey, all of Mt. Vernon, for the State.

PARKER, J.

The defendant, Rasmussen, was charged by indictment in the superior court for Skagit county [125 Wash. 177] with the commission of a felony. A trial in that court, sitting with a jury, resulted in a verdict of guilty upon which judgment and sentence were rendered against him, from which he has appealed to this court.

After the impaneling and swearing of the jurors to try the case, and the prosecuting witness had been sworn and commenced to testify, it then appearing that the prosecuting witness was in a measure an adverse witness to the prosecution, the trial judge, of his own motion, seeming to see in the attitude and answers of the witness that there was thereby disclosed cause for a grand jury investigation into matters touching the cause of the witness' adverse demeanor toward the prosecution, with reference to what it was intimated she had testified to before the grand jury which returned the indictment against the defendant, ordered a suspension of the trial and the continuance of the case for the completion of the trial, to a day certain one week thereafter. Without consent of the defendant or his counsel, the jurors were by the court then allowed to separate; the judge saying to them:

'I am going to continue this case until Monday, February 28th, and of course during this time you will not be kept together but be permitted to separate'--this being followed by the usual admonition against the jurors talking among themselves or with others about the case

When the trial was about to proceed on the date to which it was continued, counsel for the defendant objected to the trial proceeding before those jurors and moved that the jury be discharged; this objection and motion being rested upon the ground, among others, that the jurors had been allowed to separate without the consent of the defendant. The court overruled this objection and motion, saying:

'There was no objection[125 Wash. 178] made at the time the case was adjourned in the first instance and no exception taken at that time.'

The exception of counsel for the defendant to this ruling being noted, the trial proceeded, resulting in the verdict of guilty rendered against the defendant, as above noticed.

It is contended that this separation of the jurors during the entire week of the adjournment of the trial of the case was error entitling defendant to a reversal of the judgment rendered against him. We are quite convinced that this contention must be sustained. Section 2159, Rem. & Bal. Code, relating to the separation of jurors in criminal cases, provides:

'Juries in criminal cases shall not be allowed to separate, except by consent of the defendant and the prosecuting attorney. * * *'

This provision of our criminal procedure statutes has been in force and remained unchanged since its enactment by the first territorial Legislature of 1854. This court has many times given it full force and effect and has never countenanced its substantial violation. State v. Place, 5 Wash. 773, 32 P. 736; State v. Strodemier, 41 Wash. 159, 83 P. 22, 111 Am. St. Rep. 1012; State v. Bennett, 71 Wash....