State v. Shay

• Decision Date: 29 April 1936
• Docket Number: 26013.
• Citation: 57 P.2d 401,186 Wash. 154
• Parties: STATE v. SHAY et al.
• Court: Washington Supreme Court

57 P.2d 401

186 Wash. 154

STATE v. SHAY et al.

No. 26013.

Supreme Court of Washington

April 29, 1936

Department 2.

Appeal from Superior Court, King County; Calvin S. Hall, Judge.

Edward Shay and John A. Kinnear were convicted of grafting, and they appeal and petition for leave to file motions for new trial.

Judgments affirmed, and petition denied.

Adam Beeler, Vanderveer & Bassett, and Revelle Simon & Coles, all of Seattle, for appellants.

Warren G. Magnuson and B. Gray Warner, both of Seattle, for the State.

BLAKE Justice.

The defendants were jointly charged with the crime of grafting. From judgments and sentences entered on verdicts of guilty they both appeal.

The following facts were established by evidence which is uncontroverted: March 21, 1935, a personal injury case entitled 'Ole Knutsen, plaintiff, v. Guy N. Hudreen et ux., Defendants,' was on trial Before a jury in one of the departments of the superior court of King county. Appellant Kinnear was a member of the jury. About 7 o'clock in the evening of March 21st, Shay appeared at the home of Elias A. Wright, attorney for the plaintiff in the case. Shay told Mr. Wright that five of the jurors had agreed that they would return a verdict for the plaintiff in any reasonable amount up to $2,250; that if Wright would give him $150 it would be unnecessary for the former to meet the jury in connection with the proposition. During the conversation, Shay held a card in his hand, upon which he said were the names of the five jurors. Wright saw only two of the names on the card. Having known Kinnear for some time, Wright asked Shay if he (Kinnear) was one of the five. Shay replied that he was.

The next morning Wright reported the incident to the judge Before whom the case was being tried. The judge called the jurors Before him one by one, and questioned them. None of them had been approached by Shay in any manner, and none but Kinnear and one other knew him. Kinnear had known him for several years. Kinnear testified (and he told the trial judge) that, on the evening of March 21st, he drove Shay to Sixteenth and Madison, where the latter got out of the car. This was within a block of Mr. Wright's residence. He waited there until Shay returned, and they then drove back down town. Such further facts as may be stated were controverted. Kinnear denied any knowledge of Shay's mission. He also denied knowledge that Wright's residence was in that vicinity, and knowledge that that was Shay's destination.

In order to show guilty knowledge on the part of Kinnear and a general conspiracy, scheme, or system to graft on the part of both him and Shay, the state produced three witnesses, James Ashe, Verna Ashe, his wife, and Marjorie Thompson, his former secretary.

Ashe testified that, in May, 1934, while he was on trial on a grand larceny charge, Shay approached him and told him that the situation looked bad for him; that for around $2,000 he (Shay) could exert sufficient influence with certain jurors to get a disagreement, if not a verdict of acquittal. Shay denied that he ever met or knew Ashe. Mrs. Ashe testified that one day during the trial of her husband, Kinnear approached her and told her that he had good news for her husband; that the next day he met her in the corridor of the courthouse and told her that he was a member of an organization of jury fixers; that he had contacted the jury; that two of them were strong for conviction; that if she would guarantee him $1,500 he could insure an acquittal.

Miss Thompson testified that she was with Mrs. Ashe when Kinnear told the latter that he had some good news for Mr. Ashe; that she was with Mrs. Ashe the next day when she met Kinnear; that she did not hear the conversation between them, because Kinnear asked her to stay aside and see that Mr. Burgunder was not near.

Appellants contend that the evidence of these witnesses was inadmissible, because it tended to prove the commission of a crime other than the one with which they were charged. This court, however, has specifically held evidence of such character admissible. State v. Shea, 78 Wash. 342, 139 P. 203, 206. In that case the defendant was charged with the crime of grafting. Evidence was admitted tending to show the commission of another offense of grafting, but of a similar character to that charged in the information. Of the admissibility of the evidence, the court said: 'This evidence falls within the well-established execption to the rule excluding evidence as to other criminal acts. It was properly admitted as a circumstance tending to show a scheme, system, or course of conduct implying a guilty intention on the appellant's part in soliciting a like sum from the prosecuting witness, accompanied by a similar promise.'

The testimony of Ashe was admissible against Shay to show a scheme or system of conduct in grafting. The testimony of Mrs. Ashe and Miss Thompson was admissible against Kinnear to establish guilty knowledge on his part of Shay's visit to Mr. Wright.

At this point it seems appropriate to consider appellants' seventeenth assignment of error, which is directed to an instruction given by the court with respect to the effect to be given to evidence of similar transactions. The court specifically limited the effect of such evidence to its legitimate purpose of showing a scheme, or system, or guilty knowledge. The instruction is well supported by the rule stated in State v. Shea, supra.

Appellants complain that the court did not clearly instruct the jury that declarations attributed to each of the defendants were to be considered only as to the defendant to whom the statements were attributed. The court gave two instructions upon the subject of admissions, one general, the other specific. Reading the instructions together, we find no conflict in them. The court made it clear that such admissions could be considered only as against the defendant making them.

It will be well to here consider appellants' first assignment of error, which is directed to their motions for separate trials. The argument made is that each of the defendants had made is that each of missions prejudicial to himself which would not be admissible on a separate trial of the other. As we have just seen, the court limited the effect of such statements to the defendant making them. A motion for separate trial is addressed to the discretion of the court. Rem.Rev.Stat. § 2161; State v. Morris, 181 Wash. 151, 42 P.2d 37. We find no abuse of discretion in the denial of appellants' motions for separate trials.

Appellants complain that the court unduly restricted them in the cross-examination of the witnesses Ashe and Marjorie Thompson. These assignments of error are without merit.

Appellants assign as error the denial of a motion for mistrial based on misconduct of the prosecuting attorney occurring during the redirect examination of the witness Ashe. Ashe was serving a five to fifteen year sentence, and was brought from the penitentiary to testify. On cross-examination counsel for appellants sought to elicit from him the admission that in testifying he was motivated by a promise or hope of parole or executive clemency. During the cross-examination, Ashe interjected: 'I was threatened with death last night if I came here to testify.' On motion, the statement was stricken. On redirect examination, counsel for the state asked this question: 'You made the statement that you were threatened with death if you testified here today. I will ask you to state to the court the circumstances----' At this point counsel for appellants interposed an objection, which was sustained. Thereupon counsel for appellants said: 'I ask for a mistrial in this case on the ground, your Honor, that it is deliberate misconduct and an attempt to prejudice the jury against my client.' Instantly the court ruled: 'The motion is denied.' The incident was then at an end. No motion for continuance was made. Nor was the court requested to instruct the jury to disregard the question asked by the state's attorney. In such a state of the record, error cannot be predicated on misconduct of counsel. State v. Johnson, 103 Wash. 59, ...