State v. Rasmussen

• Decision Date: 18 May 1923
• Docket Number: 17797.
• Citation: 215 P. 332,125 Wash. 176
• Court: Washington Supreme Court
• Parties: STATE v. RASMUSSEN.

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 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 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. 673, 129 P. 409; State v. Morden,

87 Wash. 465, 151 P. 832; State v. LeFors, 115 Wash. 21, 195 P. 1041.

Some of our comparatively recent decisions announce a somewhat liberal view as to what constitutes a substantial separation within the meaning of our statutes, but none of such decisions can be considered as in the least giving countenance to the view that a separation of the substantial nature here shown can be justified without the consent of the defendant.

Counsel for the state seek to avoid the reversing effects of this separation of the jurors by invoking the fact that no objection or exception to the court's action allowing it to occur was taken in behalf of the defendant at the time it was by the court directed and allowed; invoking the general rule that calimed erroneous rulings of the trial court not excepted to at the time of their making are not reviewable upon appeal. We think that general rule has no application here. To keep this jury together was the plain mandatory duty of the court, unless consent to their separation by the accused be plainly evidenced in some affirmative manner. The defendant was not required to ask the court to keep the jury together and to except to a ruling of the court which might be made denying such request. The defendant did not waive his rights to have the jurors kept together by his mere silence or the mere silence of his counsel. This duty of the court to keep the jurors together, in the absence of an affirmative consent by the defendant, belongs to that class of mandatory, negative, or affirmative duties imposed upon the court by law, the neglect or violation of which counsel for a defendant upon trial is not required to object or except to at the time, in order that the error of such neglect or violation may be available to him upon appeal. The following of our decisions may be noted as illustrating and supporting this principle: Linbeck v. State, 1 Wash. 336, 25 P. 452; Freidrich v. Territory, 2 Wash. 358, 26 P. 976; State v. Myers, 8 Wash. 177, 35 P. 580, 756; State v. Crotts, 22 Wash. 245, 60 P. 403; State v. Jackson, 83 Wash. 514, 145 P. 470. Nor is this a case of the defendant voluntarily proceeding with the trial of his case without objection after knowing of a previous separation of the jurors. For, as we have seen, counsel for the defendant did timely object to the proceeding with the trial of the case before its resumption following the long continuance and the separation of the jurors.

During the...