State v. Ross

• Court: Washington Supreme Court
• Writing for the Court: HOLCOMB, J.
• Citation: State v. Ross, 85 Wash. 218, 147 P. 1149 (Wash. 1915)
• Decision Date: 20 April 1915
• Docket Number: 12389.
• Parties: STATE v. ROSS et al.

147 P. 1149

85 Wash. 218

STATE v. ROSS et al.

No. 12389.

Supreme Court of Washington

April 20, 1915

Department 1. Appeal from Superior Court, Pacific County; A. E. Rice Judge.

Frank Ross and Earl Ross were convicted of assault in the second degree, and they appeal. Affirmed.

Fred M. Bond, of South Bend, for appellants.

H. W B. Hewen, of South Bend, and Geo. D. Abel, of Hoquiam, for the State.

HOLCOMB J.

The appellants were jointly charged with assault in the second degree, and each convicted of assault in the third degree from which conviction they appeal.

1. An error is assigned in that the court permitted the state to introduce testimony by a witness named Burke as to statements made to the witness by one of the defendants, Frank Ross after the arrest of the defendants. Witness Burke assisted in the arrest of this defendant. On the return to the county seat, some conversation occurred between witness and Frank Ross concerning the prosecution and the matter for which they were being prosecuted. It is insisted by the appellants that the conversation was clearly prejudicial to their rights; in other words, that it conveyed the impression to the jury that defendants were having trouble over there with other people beside Mr. Bradley, the prosecuting witness, and no other conclusion could have been reached by the jury; and also conveyed the idea to the jury that defendants had threatened to commit a crime more serious than that with which they were charged. We do not so consider it. The prosecution by its questions, endeavored to elicit from the witness the conversation that occurred concerning the arrest and concerning the prosecution against the defendants, and the witness Burke apparently did not understand all of the questions. Interspersed through the conversation had with him were probably references to some controversy or feeling between them and other parties in the neighborhood, which, of course, were clearly improper and irrelevant, but were not gotten before the jury. But the purpose of the prosecution evidently was to show by the conversation admissions on the part of the defendants, or one of them, tending to show their guilt of the particular offense for which they were prosecuted; in other words, show what their intention or motive was. It is always proper for the prosecution to show the intent; and, so far as being prejudicial is concerned, all evidence tending to show guilt of the accused is prejudicial. If it is not irrelevant, incompetent, or immaterial to the case, it is not erroneous. There was nothing admitted by the court that was improper or irrelevant, and therefore no prejudicial error was committed.

2. Error is also assigned as to the restriction of the cross-examination of witnesses Claud Vanderpool, May Vanderpool, A. A. Bradley, and J. N. Howard. We perceive no error in the rulings of the court in regard thereto. As an example, witness May Vanderpool was asked if she had not claimed that Mrs. Ross (mother of defendants) jumped her claim out there, and if she (Mrs. Vanderpool) had not employed Mr. Abel in regard to that matter. There certainly was no error in excluding cross-examination as to this subject. It was the duty of the court to restrict cross-examination of witnesses to the issues involved in the case either directly or reasonably collateral thereto, such as their bias and interest in the matter under consideration, and we think the court did not abuse its discretion in restricting the cross-examination of all the witnesses as to which error is assigned. It is true that it is permissive to ask questions of witnesses tending to show their interest or prejudice against one of the parties, but the questions asked of these witnesses clearly went outside all direct or collateral issues in this case. The question of whether or not the Vanderpools or the Rosses were claim jumpers had no proper place in the trial of this case; continued reference thereto would have tended to obscure the real issues involved in the trial, and all such controversies should have been, and were, properly eliminated from the trial of the case.

3. Appellants urge that it was error for the court to instruct the jury defining the offense of assault in the first degree. The defendants were prosecuted for assault in the second degree, which, of course, includes, if the facts warranted, the lesser offense of assault in the third degree. The court in its instructions gave brief definitions based on the statutes of the offenses of assault in the first degree, second degree, and third degree, and further instructed the jury as follows:

'The defendant is not charged with assault in the first degree, and a definition of that offense is only given to you that you may better understand the other degrees.'

This instruction was proper to be given in the case, for the reason that the statute further provides that any assault not constituting assault in the first or second degree is an assault in the third degree. In order, then, for the jury to understand what would not be an assault in the first degree, as well as what would not be an assault in the second degree, it was not improper for the court to give them a definition of assault in the first degree; thus distinguishing between assaults in the first and second degrees and assault in the third degree, of which defendants were convicted.

The appellants also contend that it was error for the court to instruct the jury as to assault in the second degree. They argue that a careful examination of the statement of facts clearly shows that there was no evidence at all warranting the court in sending the case to the jury upon the theory that they had a right to convict of assault in the second degree. This contention, we assume, is based upon the theory that it was not definitely established at the trial of the case that the defendants or either of them used any deadly or dangerous weapon in the attack upon the prosecuting witness, Bradley. It was alleged in the information that they 'did then and there unlawfully and willfully assault, strike, beat, wound, and inflict grievous bodily harm upon, one Bradley, with metal knuckles and clenched fists.' The statute (section 2414, Rem. & Bal. Code) defines assault in the second degree, among other definitions, as follows:

'3. Shall willfully inflict grievous bodily harm upon another with or without a weapon; or

'4. Shall willfully assault another with a weapon or other instrument or thing likely to produce bodily harm.'

The evidence on behalf of the prosecution was to the effect that the prosecuting witness, Bradley, on the date alleged, was in a place where he had a right to be; that he was overtaken by defendants Frank Ross, Earl Ross, and another; that he was first insulted and called vile names, then disarmed by defendant Earl Ross of a revolver which was hung in a scabbard from his shoulder, and which he had not touched or attempted to use, and then first assailed by defendant Frank Ross, who struck him 'across the jaw with something that felt more like a slug of iron than anything else;' that he was hit several 'licks' afterwards, but could not really tell how many or by whom. Other witnesses for the prosecution testified that he had a cut under each eye, one of them about three-fourths of an inch or more long, and the other an inch or longer; that both his eyes were swollen almost shut; and that his jaw was severely swollen, the swelling extending down to the cords of his neck. A doctor who examined him on the Thursday following the Sunday on which he was assaulted found that he had black and blue areas about both eyes and some swelling about the left temple. There was a healed scar beneath each eye overlying the lower edge of the orbit, and extending about five-eighths of an inch on each side, and about half an inch below the margin of the lower lid, parallel with the lid edge. There was a fracture of the nasal bone on the left side, and a separation of the right nasal bone from the cartilege. There is positively no question, if the jury believed this and other evidence on the subject produced by the state, that they were amply warranted in finding that the defendants had, with such intent, inflicted grievous bodily injury upon the said Bradley, and that there was therefore ample evidence to justify the jury in finding defendants guilty of assault in the second degree, instead of assault in the third degree, as they did find.

4. An error is urged upon the failure of the court to instruct the jury that the law presumes the defendants innocent, and that this presumption of innocence remains with the defendants throughout the whole trial and until said presumption of innocence is overcome by the state by competent evidence beyond a reasonable doubt, and that this is true even though the defendants do not request the same; this duty being provided for by law. It is urged that section 16, art. 4, of the Constitution of the state of Washington, which reads 'Judges shall not charge juries with respect to matters of fact, nor comment thereon, but shall declare the law;' and the statutes of 1909 (section 2308, Rem. & Bal. Code), as follows: 'Every person charged with the commission of a crime shall be presumed innocent until the contrary is proved by competent evidence beyond a reasonable doubt; and when an offense has been proved against him, and there exists a reasonable doubt as to which of two or more degrees he is guilty, he shall be convicted only of the lowest'--render it the imperative and mandatory duty of the court in all criminal cases to instruct the jury as to the presumption of innocence. Cases from other jurisdictions are cited to sustain this contention. People v. Potter, 89 Mich. 353, 50 N.W. 994; ...