State v. Ripley

• Decision Date: 08 July 1903
• Citation: 32 Wash. 182,72 P. 1036
• Parties: STATE v. RIPLEY.
• Court: Washington Supreme Court

72 P. 1036

32 Wash. 182

STATE v. RIPLEY.

Supreme Court of Washington

July 8, 1903

Appeal from Superior Court Snohomish County; John C. Denney, Judge.

M. R Ripley was convicted of robbery, and appeals. Affirmed.

Silas M. Shipley, for appellant.

H. D Cooley, for the State.

HADLEY J.

Appellant and one Graham were jointly charged with the crime of robbery, alleged to have been committed at Silverton, in Snohomish county. Separate trials were demanded, and at the trial of appellant the jury returned a verdict of guilty. A motion for new trial having been denied, the court sentenced the appellant to serve a term of 10 years' imprisonment in the penitentiary, and entered judgment accordingly. This appeal is from said judgment.

It is assigned that the evidence is insufficient to establish robbery, and that the verdict should have been set aside. We do not deem it necessary to review the testimony here. We have read all the evidence, and find some conflict as to the amount of money the complaining witness may have had upon his person, and also as to other facts; but we are satisfied that there was ample evidence to sustain the verdict, if the jury believed it to be true. That they found it to be true is shown by the verdict itself, and, since it was the province of the jury to pass upon the weight of the testimony, we shall not disturb the verdict on that ground alone. This court has heretofore announced that it will not disturb verdicts of his character, on the ground of alleged insufficiency of evidence, where there is evidence to support the verdict, although it may not be of the most convincing kind. Both the jury and the trial court have the opportunity to hear and see the several witnesses, to note their manner as to apparent candor and truthfulness, and are therefore better prepared to pass upon the credibility of their testimony than is this court with only a bare record of the words spoken by the witnesses. The weight of the evidence having been first passed upon by the jury, and next by the trial judge in denying the motion for new trial, we shall not undertake to say that they were wrong. State v Kroenert, 13 Wash. 644, 43 P. 876; State v. Murphy, 15 Wash. 98, 45 P. 729.

It is assigned that the court erred in the following particulars: A witness for the defense was being cross-examined by the prosecuting attorney. He was asked if he did not know that the appellant had 'rolled any number of people up there in Silverton,' and further if he did not know that he 'rolled one man up there, and when the officer went for him he gave the money back he took from him.' Also if he did not know as a fact 'that the better element in Silverton looked upon him as a crook.' Appellant's counsel then demanded of the prosecuting attorney the name of the officer to whom he had referred. Thereupon counsel for the state replied: 'If you want the name, I will get it and give it to you.' Appellant's counsel then stated that he wished to have the officer subpoenaed, and asked the court to adjourn the trial until the officer could be brought before the court to testify. The request was denied. Appellant's counsel then moved to strike from the record all the evidence in regard to what the prosecuting attorney had stated concerning 'rolling somebody else or giving any money back to any officer.' The motion was denied. It is contended that the court erred in permitting the prosecuting attorney to cross-examine the witness in the manner above indicated, although no objections were interposed at the time the questions were asked, on the theory that it was the duty of the trial court to interfere of its own motion and protect the appellant against a violation of his constitutional right to a fair and impartial trial. We do not think any constitutional right was violated by permitting the questions, when no objections were offered. The appellant being represented by counsel, the court might have reasonably assumed that for some reason best known to appellant and his counsel they actually desired that the examination should proceed on the lines indicated, without interruption. We also think it was properly within the discretion of the court to deny the motion to adjourn the further hearing of the case. The court and jury were then regularly in the midst of the trial. If the conditions arising in the course of trials which seem to suggest the propriety of securing the attendance of witnesses not present should be held as legal ground for the adjournment of trials, the courts would be greatly embarrassed in the dispatch of public business. Conditions might arise in the course of a trial which would appeal to the trial judge as properly calling for an adjournment in the furtherance of justice; but the granting or refusal of such adjournment must rest largely in the discretion of the court, and we think there was no abuse of such discretion here. We also think no prejudicial error was committed in denying the motion to strike. The answers of the witness were not prejudicial to the appellant, and the questions of counsel were not evidence.

Error is assigned upon the following: The witness Graham, who is also a codefendant with appellant in this prosecution, was testifying in behalf of appellant when he was asked: 'Is this the first time you were ever arrested for robbery?' Appellant objected to the question as incompetent and immaterial, and the objection was overruled. Counsel cites State v. Payne, 6 Wash. 563, 34 P 317, in support of this claim. In that case the defendant upon trial was asked in cross-examination if he had ever been confined in the county jail, and if he had ever been convicted of a crime before, to all of which he answered 'No.' Afterwards the court permitted the prosecution to introduce the sheriff of the county, who testified, over objection, that the defendant had been in the county jail under a conviction of petit larceny before a justice of the peace. The sheriff also read from the jail record. It was held that this was error; that the state was concluded by the answer of the witness, and could not contradict him, since the subject-matter of the inquiry was collateral to the issue before the jury. It was not held, however, that it is incompetent to attempt to...