State v. Stockhammer

• Decision Date: 11 March 1904
• Citation: 75 P. 810,34 Wash. 262
• Parties: STATE v. STOCKHAMMER.
• Court: Washington Supreme Court

75 P. 810

34 Wash. 262

STATE v. STOCKHAMMER.

Supreme Court of Washington

March 11, 1904

Appeal from Superior Court, Chehalis County; Mason Irwin, Judge.

Joseph Stockhammer was convicted of manslaughter, and appeals. Affirmed.

C. W. Hodgdon and Sidney Moor Heath, for appellant.

J. A Hutcheson, for the State.

DUNBAR J.

The appellant was charged in the information with murder in the first degree, was convicted of manslaughter, and sentenced to two years in the penitentiary.

The first assignment is that the court erred in allowing the jury to separate without the consent of the defendant personally. It is conceded that the consent was given by the counsel of appellant, but the contention is that this is not sufficient. Section 6947, 2 Ballinger's Ann. Codes & St., provides that juries in criminal cases shall not be allowed to separate except by consent of the defendant and the prosecuting attorney. Appellant cites State v Place, 5 Wash. 773, 32 P. 736, and Brown v State, 38 Tex. 482, im support of the contention that the conditions of the statute have not been complied with. State v. Place does not in any manner support such contention, as it does appear in that case that there was no consent given by either appellant or counsel. Brown v. State was a case where the defendant was not present during the trial, he being in an adjoining room sick, having been removed by the instruction of his attending doctor during the argument; and, while the court in that case incidentally held that the attorney for the defendant could not consent to the jury separating, under the particular provisions of the Code it was also said that, even if the defendant himself had consented, the case would still have to be reversed, for the reason that the separation was not such a separation as was provided for by the Code. But we think there are no cases which hold, under the provisions of a statute such as ours, that the consent of the counsel, the defendant being present and hearing the consent announced by the court, is not sufficient. In fact we think it is much the better practice, and is a more orderly proceeding, and a consent which is more likely to be intelligently given than a mere formal consent stated by the defendant. By reference to State v. Holedger, 15 Wash. 443, 46 P. 652, it will be seen that the procedure in this case was exactly in accordance with the suggestion of this court made to the trial judges of the state. It will be noted that in that case the consent was obtained from appellant's counsel, and the court refused, even under the circumstances of the case, to reverse the judgment for the alleged error alone, but said: 'The appellant complains in his ninth assignment that the court erred in asking counsel for appellant, in the presence and hearing of the jury, if they had any objection to the separation of the jury. In the absence of any proof to the effect that the appellant was prejudiced in any way be the action of the court, we do not feel like reversing a case on this ground alone; but we desire to take occasion to say that, considering the difficulty of making such a showing of injury by the party who claims to be aggrieved, we think it is a practice which should not be indulged in by trial courts, because, as appellant complains, if they did entertain any objection to the separation of the jury, they were called upon to so state in the presence of the jury, and would thereby run the risk of incurring the displeasure of some juror. The court could very easily call counsel to him, and ascertain privately, and without the knowledge of the jury, whether there were any objections to their separation.' This course having been pursued by the trial court in this case, no error was committed.

The next contention is that the court allowed the jury to separate without being admonished and instructed as to its duties. It is conceded that the court did, upon the first separation of the jury, give them full admonition concerning their duties as provided by the statute; but that upon the next separation the admonition was not given. The admonition having been once given, it was not necessary to repeat it; and, especially as no request was made therefor by the appellant, it will not be presumed that he was prejudiced by the failure of the court to give repeated admonitions.

It is claimed that the trial court erred in sustaining respondent's objection to the following question proposed by appellant's counsel on cross-examination: 'Mrs. Stockhammer, is it not true that your brother had such a bitter feeling against Mr. Stockhammer that in giving you a check he refused to write it as 'Maria Stockhammer,' but wrote it as 'Maria Eigner'?' Objection was sustained to this question--and, we think, properly sustained--as calling for a mere opinion of the witness as to the motive of the deceased in preparing the form of a check. All that the witness could properly testify to was the fact, and it was for the jury to determine from such fact the feeling which prompted it, and the following question, viz., 'Is it not true that your brother, in giving you a check, gave it to you as 'Maria Eigner' instead of 'Maria Stockhammer'?' was afterwards asked and answered without objection.

The fourth assignment is that the court erred in refusing to allow...