State v. Smith, 32353
Decision Date | 21 September 1953 |
Docket Number | No. 32353,32353 |
Citation | 43 Wn.2d 307,261 P.2d 109 |
Court | Washington Supreme Court |
Parties | STATE, v. SMITH. |
P. R. McIntosh, W. S. Lewis, Seattle, for appellant.
Charles O. Carroll, Pros. Atty., Dale E. Sherrow, Deputy Pros. Atty., Seattle, for respondent.
This is an appeal from a judgment and sentence for the crime of indecent liberties. The information charged:
'He, the said Clarence Smith, in the County of King, State of Washington, on or about the 13th day of July, 1952, wilfully, unlawfully and feloniously then and there did take indecent liberties with and on the person of one Sharon Smith, then and there a female child under the age of fifteen years, to-wit: of the age of eight years.'
Clarence Smith and his family, consisting of his wife and three children, were staying at a cabin at Shady Lake, in King county. On Sunday, July 13, 1952, the mother and children were out by the lake. The father was alone in the cabin. The mother sent Sharon, age eight years, up to the cabin. When she returned, she told her mother what her father had done to her. We shall endeavor not to relate the revolting details of what transpired. If true (and the jury so found), there is no doubt but that the father committed the crime of taking indecent liberties.
The mother told her folks, who notified the authorities. On Monday, July 21st, the father, mother, and Sharon were questioned in the office of Leo M. Sowers, juvenile officer of the sheriff's office. Mrs. Ruth deHart, an employee of the juvenile department, was also present. In the presence of her mother, Sharon related to Mrs. deHart the details of the crime. The father also related what had transpired and signed a confession, which went into considerable detail.
Mr. Smith was arrested and charged with taking indecent liberties, and the mother and children went to live with the mother's relatives. Later, Smith was released on bail, and he and his family lived together until the trial. At the conclusion of the trial the jury found the defendant guilty as charged.
The assignments of error are: that the court erred in denying a new trial on the grounds that there was irregularity in the proceedings of the court and jury; that the court erred in denying a motion that the jury be instructed to disregard the testimony of Sharon Smith; that the court erred in ordering the child to testify that the matters suggested to her by the court's leading questions were the truth; and that the court erred in giving certain instructions.
Appellant signed an affidavit in support of his motion for new trial, alleging that, after submission of the cause to the jury, he was present and waiting in the court room adjoining the jury room; that, after deliberation for some time, sounds of loud argument and discussion emanated from the jury room; that after this continued for some time the bailiff knocked on the door, opened the door and told the jurors that they would have to lower their voices; that he then closed the door and there were no more sounds of argument or discussion audible in the court room; that a very few minutes later the jury announced that it had reached a verdict.
Fred A. Landon, the bailiff, in a controverting affidavit, stated that he heard sounds of discussion emanating from the jury room; that he knocked, opened the door and requested the jurors to lower their voices; that a juror asked if the judge was still in the courthouse; that he replied in the affirmative and stated that the judge would remain until six o'clock, at which time the jury would be taken out to dinner.
Appellant relies upon RCW 4.44.300, derived from Section 229, Code of 1881, which we quote:
In State v. Wroth, 15 Wash. 621, 47 P. 106, the jury, during its deliberations, requested to see the judge. He went to the jury room and stood in the doorway, the door being partly opened. He then informed counsel that the jurors requested additional instructions. We held that to be reversible error. In State v. Waite, 135 Wash. 667, 238 P. 617, the jury sent a note to the judge asking if they could make additional recommendations. We went to the jury room and informed them that they could. We reversed the conviction. In State v. Burke, 124 Wash. 632, 215 P. 31, we reversed where the bailiff delivered to the jury a magnifying glass which had not been introduced in evidence. In State v. Moore, 38 Wash.2d 118, 228 P.2d 137, we reversed when the bailiff furnished the jury with a magnifying glass, and also informed them that a shoe which they wanted to examine (which was not in evidence), had been taken back to Bremerton and was not available.
In State v. Aker, 54 Wash. 342, 103 P. 420, 422, after the jury had retired to deliberate upon its verdict, the bailiff unlocked the door to the jury room, placed his person within the jury room so that only one of his legs remained without the door, and was heard speaking to the jurors. In affirming the judgment and sentence we said:
In State v. Carroll, 119 Wash. 623, 206 P. 563, while the jury was deliberating, the wife of one of the jurors handed the bailiff a note to be delivered to her husband, which the bailiff delivered, and which read: The affidavits of both the husband and wife stated that the note had no secret meaning. A new trial was asked for, and it was contended that the above statute had been violated, to the defendant's prejudice. We said
In the case at bar, although there was a technical violation of the statute, the bailiff should not be censured. The appellant was sitting in the court room. Loud sounds emanated from the jury room. Apparently the bailiff was fearful that the deliberations might become common knowledge. He was in charge of the jury. Surely in a situation of that kind the bailiff should not be required to report to and obtain permission from the judge, before acting. We find no prejudice to appellant because of the bailiff's actions.
We shall consider together the assignments that the court erred in denying a motion to disregard the testimony of Sharon Smith, and also erred in ordering her to testify that the matters suggested to her by the court's leading questions were the truth. During the direct examination of Sharon the following occurred:
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