State v. Rosi

• Decision Date: 23 June 1922
• Docket Number: 17052.
• Citation: 120 Wash. 514,208 P. 15
• Parties: STATE v. ROSI.
• Court: Washington Supreme Court

208 P. 15

120 Wash. 514

STATE v. ROSI.

No. 17052.

Supreme Court of Washington

June 23, 1922

Department 2.

Appeal from Superior Court, Pierce County; W. O. Chapman, Judge.

G. Rosi was convicted of a crime, and he appeals. Affirmed.

A. B Bell, Harry E. Phelps, and James F. O'Brien, all of Tacoma, for appellant.

J. W Selden, J. A. Sorley, and T. F. Ray, all of Tacoma, for the State.

HOLCOMB, J.

Two errors are assigned by appellant to obtain a reversal of the verdict and judgment of guilty in the court below.

The first is based upon an instruction to the jury excepted to by appellant, and the second is based upon the refusal of the court to grant a new trial for the alleged error contained in the instruction assailed.

The instruction complained of is as follows:

'A defense interposed by the defendant in this case is an alibi; that is, that the defendant was at another place at the identical time the crime was committed, if committed at all.

'When the state makes out such a case as would sustain a verdict of guilty and the defendant offers evidence, the burden is upon him to make out his defense as to an alibi but it is not incumbent upon him to prove an alibi beyond a reasonable doubt; and when the proof is all in, both that given by the state and for the defendant, then the primary question is (the whole evidence being considered): Is the defendant guilty beyond a reasonable doubt?--the law being that, if after you have considered all the evidence, as well that touching the alibi as the incriminating evidence introduced by the state, you have a reasonable doubt of the guilt of the accused, you should acquit, and, if you have not, you should convict.'

The error urged is that the court alluded to the evidence introduced by the state as 'incriminating' in the above instruction. It is insisted that the use of the word 'incriminating' constituted a comment upon the evidence forbidden by section 16, art. 4, of the Constitution of Washington, providing that----

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

It is asserted by appellant that the trial court invaded the province of the jury, and commented upon the facts of the case sufficient to convey to their minds that, in his opinion, witnesses had testified to facts incriminating the appellant. State v. Walters, 7 Wash. 246, 34 P. 938, 1098, is relied upon to sustain this contention.

In that case, in one instruction, using the words 'tending to incriminate' in referring to witnesses who had testified to facts in the case, and the use of the words 'incriminating evidence' in another instruction relating to the possession of stolen property were considered unlawful comments upon the facts by the trial court, for which the conviction was reversed.

Later, however, in State v. Surry, 23 Wash. 655, 63 P. 557, the same judge who wrote the opinion in the case of State v. Walters, supra, restricted its application by the following language:

'While we are not disposed to overrule the prior decisions of this court as to the object and scope of this constitutional provision, we are not prepared to extend the rule enunciated in those cases so far as to hold that every casual, inadvertent, or unnecessary remark made by the judge in reply to a proposition or suggestion of counsel constitutes a sufficient ground for reversing a judgment. In our opinion, it is only such remarks of the presiding judge during the course of a trial as might reasonably influence the mind of an ordinary juror that can justly be said to be inimical to the Constitution. And whether error has been committed in a given case must therefore depend upon the particular facts and circumstances therein disclosed.'

In the later case of State v. Manderville, 37 Wash. 365, 79 P. 977, which was a prosecution for homicide, an instruction was given on the matter of the reputation of the defendant almost identical with the instruction given in State v. Walters, supra, on that matter, and, using the word 'criminating' in alluding to the testimony of witnesses, we said:

'But, after careful consideration, we are convinced that, while this instruction is open to criticism it nevertheless does not constitute reversible error in this case. An examination of the statement of facts shows that, among other instructions which carefully guarded the rights of the defendant, the trial court gave the following: 'Under the Constitution and laws of this state, the jury are the sole judges of the facts, and the judge is prohibited from commenting upon the facts. Therefore, if in ruling upon objections, or in answering questions asked by counsel for either the state or defendant, or in any other way, or under any other circumstances, the court has commented upon the testimony in this case, the court instructs

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