State v. Summers, 39681

• Decision Date: 29 February 1968
• Docket Number: No. 39681,39681
• Citation: 437 P.2d 907,73 Wn.2d 244
• Court: Washington Supreme Court
• Parties: The STATE of Washington, Respondent, v. John Carl SUMMERS, Appellant.

Page 244

73 Wn.2d 244

437 P.2d 907

The STATE of Washington, Respondent, v. John Carl SUMMERS, Appellant.

No. 39681.

Supreme Court of Washington, Department 1.

Feb. 29, 1968.

Ralph L. Jones, Walla Walla, for appellant.

Arthur R. Eggers, Pros. Atty., Albert J. Golden, Deputy Pros. Atty., Walla Walla, for respondent.

EVANS, Judge. ^*

The appellant, Summers, appeals from a judgment and sentence based upon the verdict of a jury finding him guilty of attempting to escape from the Washington State Penitentiary while under sentence for a felony.

After the parties had announced themselves ready for trial, and prior to voir dire examination of the jury, counsel for appellant moved the court to dismiss all jurors who had served earlier in the same week on a case similar to the present one and had returned a verdict of guilty. This motion was denied.

After the jury was selected and sworn, counsel for appellant moved the court to dismiss four jurors then in the jury box who had served in the prior case. The court also denied this motion.

The denial of these motions constitutes appellant's first assignment of error.

RCW 4.44.180 provides that a challenge for implied bias may be taken for certain enumerated causes 'and not otherwise.' Having previously served on a similar case is not one of the enumerated causes.

The present case involves an attempted escape by the appellant Summers with an inmate named Ostiguy on January 24, 1967. The previous case involved an attempted escape by a defendant named Persinger with an inmate named Moses on March 17, 1967. Other than that both cases involved attempted escapes from the same penitentiary, there is nothing to relate them one to the other.

As stated in State v. Van Waters, 36 Wash. 358, 78 P. 897 (1904):

There are cases which hold that a person who has sat as juror on the trial of a defendant is disqualified to sit on the trial of his codefendant. The rule is founded on the principle that the second trial is but a retrial of the same offense, and that a juror who has heard and rendered a verdict in the first trial must necessarily have an opinion as to the guilt or innocence of the accused. But no such condition appears in the case before us. These were two distinct and separate crimes, committed at different times, having no relation one with the other, save that they were of the same character and were committed on the same person. A juror who had been convinced of the guilt of the defendant in the first could not, from that fact alone, have any knowledge or opinion as to the guilt or innocence of the defendant in the second, and, of course, would not be disqualified for that reason. (p. 363, 78 P. p. 898)

The same reasoning applies to the facts in the present case. We find no merit to appellant's first assignment of error.

Appellant assigns as error the court's instruction No. 16--A, which reads as follows:

The credibility of a witness may be impeached by evidence that the witness has been convicted of a criminal offense. You are instructed that such evidence may be considered by you as it may have a bearing...