State v. Shutzler

• Court: Washington Supreme Court
• Writing for the Court: FULLERTON, J.
• Citation: State v. Shutzler, 82 Wash. 365, 144 P. 284 (Wash. 1914)
• Decision Date: 27 November 1914
• Docket Number: 12183.
• Parties: STATE v. SHUTZLER.

144 P. 284

82 Wash. 365

STATE v. SHUTZLER.

No. 12183.

Supreme Court of Washington

November 27, 1914

Department 2. Appeal from Superior Court, Pierce County; M. L. Clifford Judge.

Gus Shutzler was convicted of grand larceny, and he appeals. Reversed and remanded.

P. L Pendleton, of Tacoma (G. J. Langford and Browder D. Brown both of Tacoma, of counsel), for appellant.

Lorenzo Dow and W. D. Askren, both of Tacoma, for the State.

FULLERTON J.

Gus Shutzler was convicted of grand larceny, and appeals from the judgment and sentence pronounced upon him.

He assigns as error that the trial court on a legal holiday, in the absence of and without notice to himself or his attorneys, after the jury had been sent out to deliberate on their verdict, called them into the courtroom and gave them certain additional instructions. The facts giving rise to the contention are well stated by the trial judge in the following language:

'As stated in these affidavits [affidavits filed in support of a motion for a new trial], the jury had been deliberating upon their verdict from about 4 o'clock p. m. of the 31st day of January, until approximately 5 o'clock on the 1st day of February, 1914. At this time, on Sunday afternoon, the judge, being at the courthouse, was informed by the bailiff in charge of the jury that it was impossible for the jury to agree; and the court understood this information to come from the jurors, and, so understanding, instructed the bailiff to bring the jury into court for the purpose of being discharged, and they were so brought in, the court having in mind to discharge them if this report proved to be true. When brought into court, the judge asked them if they were able to agree upon a verdict. They answered they were not. The court then further inquired if they thought, if more time were given them for deliberation, they might arrive at a verdict, when a portion of them said they thought they could, and others of them stated they did not think they could arrive at a verdict. Thereupon the court said to the jury, in substance, that it was a matter of importance that the jury, if possible, come to a conclusion and arrive at a verdict, inasmuch as it was a matter of considerable expense to the county, and would be additional expense to retry the case. Some one of the jurors then informed the court that they stood 11 to 1, but did not indicate, nor was it known, upon which side the 11 were. The judge then said to the jurors that, inasmuch as but one of the number disagreed with his fellow jurors the court could not and would not advise any juror to agree to a verdict contrary to his own judgment and conscience, but that it was proper for a juror under such circumstances to consider whether or not he might be mistaken in his views. The judge then added that he would request them to return to their jury room for further deliberation, and that it was their duty to carefully consider the evidence under the instructions of the court, and endeavor, if possible, to arrive at a verdict; and some time later, probably about three hours later, the jurors arrived at a verdict, which was returned into court.'

The court also caused to be inserted in the record the following further statement:

'The court is of the opinion

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