State v. Storrs

• Decision Date: 13 October 1920
• Docket Number: 15635.
• Citation: 192 P. 984,112 Wash. 675
• Court: Washington Supreme Court
• Parties: STATE v. STORRS.

192 P. 984

112 Wash. 675

STATE v. STORRS.

No. 15635.

Supreme Court of Washington

October 13, 1920

Department 2.

Appeal from Superior Court, Okanogan County; John S. Jurey, Judge.

Douglas M. Storrs was convicted of seduction, and he appeals.Affirmed.

Mount J., dissenting.

P. D. Smith and W. C. Brown, both of Okanogan, and Walter S. Fulton, of Seattle, for appellant.

W. C Gresham, of Okanogan, and A. R. Hilen and Thos. M. Askren both of Seattle, for the State.

BRIDGES J.

Appellant was found guilty of seducing Ruth Garrison.His motions for an instructed verdict and for new trial were denied and judgment of sentence pronounced, from which judgment he has appealed.

1.The first assignment of error is based upon the alleged fact that the court refused to permit appellant's counsel to interview and consult with the witness Ruth Garrison before or pending the trial of the action.The record shows that on the day the trial commenced the appellant moved the court for permission to interview Ruth Garrison, who was one of the chief witnesses in the case, and supported that motion by affidavit to the effect that, prior to and at the time of the trial, Miss Garrison was confined in the insane ward of the state penitentiary at Walla Walla; that he had procured to be issued out of the court an order, directing the warden of such penitentiary to produce her as a witness on behalf of the appellant at his trial; and that she had been brought to the place of trial by a penitentiary guard who refused the appellant's attorneys permission to consult with her.Thereafter the court made an order denying the appellant's motion.The order of denial does not state the reasons therefor.The record further shows that Miss Garrison was a very important witness, and was called by the state; that she was fully cross-examined by the attorneys for the appellant; and that, during the course of the cross-examination, but near the close thereof, they were given permission to talk privately, but in the presence of the court, with the witness.

It may be conceded that a person charged with a crime ordinarily has a right to talk with persons having any knowledge of matters which might be beneficial or detrimental to him.But this right is not of universal application.The matter must of necessity rest largely in the discretion of the trial court; and, where that court has refused to permit the defendant to consult with a witness before the trial, this court should not reverse on that account, except for an abuse of discretion.A very thorough investigation of the question convinces us that the court did not abuse his discretion.The record shows that, before the trial, Ruth Garrison had been tried in another court for the murder of the appellant's wife; that the jury had found her not guilty because of criminal insanity and mental incompetency; that she had been sentenced to the ward for criminally insane persons at the state penitentiary, where she was confined at the time of this trial; that for a long time before the trial of this caseshe had been, and still was, greatly in love with the appellant, and he then had great influence over her; that she was willing to, and, as a matter of fact, did, during the trial, shield and protect him in all honorable ways; and that she was so enamored of him that she would have made almost any sacrifice for him.In fact, the only thing lifting this case above the usual in such cases is the great, uncommon, and almost unnatural love of Ruth Garrison for the appellant, always shining through the dross.In the light of all these facts, and possibly others which the record does not disclose and which may have been known to the trial court, the latter well might have concluded that the ends of justice required the making of the order refusing the appellant and his attorneys permission to interview the witness.When we consider the manifest state of mind of the witness toward the appellant, his influence over her, her mental incapacity, and the fact that she was confined in the penitentiary, we cannot say that the court abused its discretion.

The appellant greatly relies upon the case of Shaw v. State,79 Miss. 21, 30 So. 42, where the court held it was error to refuse the defendant the privilege of conferring with his own witness; and State v. Papa,32 R.I. 453, 80 A. 12, where the court held that the attorney for the defendant, not only had the right, but it was his duty toward the client, to fully investigate the case and to interview and examine as many as possible of the eyewitnesses to the assault, and that witnesses were not parties and should not be partisans.Those cases doubtless state the general rule; but the facts of those cases were very different from the facts of this case.It has generally been held that questions of this character are within the discretion of the trial court.It was in substance so held in the following cases: Williams v. State,53 Fla. 89, 43 So. 428;Hudson v. State,137 Ala. 60, 34 So. 854;Robinson v. State, 8 Okl. Cr. 667, 130 P. 121;State v. Goodson,116 La. 388, 40 So. 771.

But, should it be conceded that the court abused its discretion, yet a careful reading of the testimony convinces us that the appellant was not prejudiced by the court's action.He does not point out any specific instance where he was so prejudiced.He does not point to any testimony he might have brought out if he had been given an opportunity to interview the witness.At all times she was friendly to him, and on cross-examination testified fully and openly.We cannot therefore find any reversible error in the action of the trial court in refusing the interview.

2.The appellant makes numerous assignments of error based upon alleged improper remarks and improper argument to the jury by, or misconduct of, the attorneys for the state.We have uniformly held that, where objections are made to an alleged improper remark or argument, and the court at the time sustains the objection and plainly directs the jury to disregard any such remark or argument, we will not hold such as reversible error unless the argument or remark was of such character as to convince us that the court could not by his admonitions to the jury cure the error.State v. Boyce,24 Wash. 514, 64 P. 719;State v. Hawkins,27 Wash. 375, 67 P. 814;State v. Wong Tung Hee,41 Wash. 623, 84 P. 596;Bunck v. McAulay,84 Wash. 473, 147 P. 33;State v. Ackerman,90 Wash. 198, 155 P. 743.

In common with all other courts, we have always held that we will not review an alleged error, to which no objection was made or exception taken.Rice v. Stevens,9 Wash. 298, 37 P. 440;State ex rel. Mackintosh v. Superior Court,45 Wash. 248, 88 P. 207.

Each of the following assignments of error is controlled by the caseswe have cited, to wit: Assignment of error No. 2, being a remark made by the prosecuting attorney to the effect that, 'I am not trying him for murder.'AssignmentNo. 3 1/2, concerning a remark made by the prosecuting attorney about the Mann Act.AssignmentNo. 7, concerning another remark made by the prosecuting attorney, to the effect that, 'All the evidence goes to show that he played up in the mind of that little, weak girl.'AssignmentNo. 8, with reference to certain other remarks made by the prosecuting attorney.AssignmentNo. 10, which concerns a remark made by the prosecuting attorney as follows: 'I don't think it is anything but byplay, anyway.'AssignmentNo. 16, being a remark by the assistant prosecuting attorney to appellant's attorney as follows: 'Do you mean to say that because a man is quarreling with his own wife, it gives him a right to commit seduction outside his own family?'AssignmentNo. 17, being a portion of the closing argument of the assistant prosecuting attorney.In each of these instances the appellant's attorney made objection, and the objection was sustained, and the court at the time clearly and expressly warned the jury that it should not consider any such remarks or statements.While some of the objectionable remarks may have been improper, yet we have no doubt that any detrimental effect they may have had was removed by the court's instruction to the jury.

The cases cited by us also dispose of assignment No. 4, where error is claimed because Mr. A. R. Hilen acted as assistant prosecuting attorney.No objection to his so acting was made at the trial, and there was no ruling of the court or request for ruling.Nor do we see any valid reason why he should not have so acted, since he did so at the request of the prosecuting attorney.

3.A number of errors are assigned, based upon the opening statement by the prosecuting attorney, wherein it is claimed he made various assertions as to what the state's testimony would show, when as a matter of fact the testimony failed to substantiate such statement.It must be conceded that the prosecuting attorney in his opening statement did claim that he would be able to prove certain things which as a matter of fact he failed to prove, but most of these matters were of an immaterial nature.The state was required, in the nature of things, to rely for the most part upon Ruth Garrison to make out its case; and she was in a sense a hostile witness--hostile in the sense that she was manifestly willing at all times to protect the appellant.It should also be borne in mind that this witness was confined in the insane ward of the state penitentiary, and that the state had not had the usual opportunity to confer with her concerning what her testimony would be.We have read and re- read the whole of the opening statement, and cannot find that the prosecuting attorney was actuated by any malice or venom, or that, generally speaking, the statement was not fair.

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