State v. Schuman

• Decision Date: 18 October 1915
• Docket Number: 13066.
• Citation: 152 P. 3,87 Wash. 590
• Parties: STATE v. SCHUMAN.
• Court: Washington Supreme Court

152 P. 3

87 Wash. 590

STATE v. SCHUMAN.

No. 13066.

Supreme Court of Washington

October 18, 1915

Department 2. Appeal from Superior Court, King County; Everett Smith Judge.

Paul Schuman was convicted of crime, and he appeals. On motion to strike instructions. Motion denied.

John F Dore and Robert Welch, both of Seattle, for appellant.

Alfred H. Lundin and Joseph A. Barto, both of Seattle, for the State.

MOUNT J.

This case is pending here on appeal. The respondent has filed a motion to strike from the record instructions therein which purport to have been given by the court at the trial. The respondent makes a showing here by affidavit to the effect that the instructions which were actually given by the court are not included in the record; that the instructions which are included in the record purport upon their face to be instructions given by the court at the trial, but that these instructions were in fact instructions which were requested by the respondent, and so indorsed upon the back of the document and filed in the case, but that these requested instructions were in fact not given by the court to the jury. It is also shown that the instructions which were actually given by the court were not filed with the clerk of the court where the case was tried, but were lost or destroyed after they were given, and after they were taken by the jury to the jury room. The clerk in certifying to the transcript certifies:

'That the foregoing is a full, true, and correct transcript of so much of the files and record in cause No 7407, State of Washington v. Paul Schuman, as I have been directed by the appellant to transmit to the Supreme Court of the state of Washington on appeal.' It is argued by the appellant that, inasmuch as the instruction which the respondent seeks to strike were actually filed in the case, they are a part of the record, and therefore cannot be stricken. We are satisfied that this position must be sustained. It is not claimed that these instructions which appear in the record are not a part of the record. It is contended only that they were not given at the trial as the instructions of the court. Whether they were actually given or not does not appear upon the face of the record, except a statement heading the instructions as follows: 'Instructions of the court.' The certificate of the clerk does not recite that these instructions were given, but recites that they are a part of

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