State v. Surry

• Decision Date: 29 December 1900
• Citation: 63 P. 557,23 Wash. 655
• Court: Washington Supreme Court
• Parties: STATE v. SURRY.

63 P. 557

23 Wash. 655

STATE v. SURRY.

Supreme Court of Washington

December 29, 1900

Appeal from superior court, King county; O. Jacobs, Judge.

Henry Surry was convicted of assault and battery, and he appeals. Affirmed.

Wm Parmerlee, for appellant.

James F. McElroy, John B. Hart, and Walter S. Fulton, for the State.

ANDERS J.

The appellant was charged by information, under section 23 Hill's Pen. Code (Ballinger's Ann. Codes & St. § 7058), with an assault with a deadly weapon (a revolver) upon one Edward May, with intent to do bodily injury, no considerable provocation appearing therefor. On the trial upon the information, the jury returned a verdict of guilty of assault and battery, and the court, after denying his motion for a new trial, sentenced the appellant to pay a fine and to imprisonment in the county jail. It appears from the record that about 2 o'clock on the morning of October 7, 1898, the appellant, who was then a 'merchants' patrolman' and deputy sheriff, and two police officers, discovered the prosecuting witness, Edward May, then a youth of the age of 17 years, together with three companions, in or about a vacant lot near Madision street and Second avenue, in the city of Seattle. Suspecting from their movements that these four young persons were about to engage in some unlawful transaction, appellant and the two policemen concluded to apprehend them, and ascertain what they were doing at that place. The vacant lot seems to have been considerably lower than the adjacent street and sidewalk, and was approached by a flight of stairs of steps. While the officers were looking at these boys, three of them climbed over the fence into the adjoining vacant lot close to a candy and cigar store, while the fourth remained upon the sidewalk. Immediately after the boys went over the fence, the appellant and the policemen left the place where they had been standing unobserved in the shadow of a building, and went in search of them. One of the officers went down to the lot, and very soon thereafter the complaining witness, May, came up the steps to the sidewalk not far from where the appellant was standing, and ran down Madison street towards First avenue. The appellant ran after him, and, as he says, called upon him several times to stop. After he had pursued May for some distance without overtaking him, appellant drew his revolver, while he was running, and fired. After firing the shot he continued the pursuit for the distance of a block and a half, and then gave up the chase. May continued running until he reached the residence of his mother, where he informed her that he had been shot. Physicians were immediately summoned, and, upon examination, it was ascertained that the bullet from the pistol struck May in the back part of the thigh, and, passing upward, lodged near the groin.

It is claimed by appellant that the court erred in commenting on the evidence in the presence of the jury. It was admitted by the appellant at the trial that he fired the shot that struck May, but he claimed as a defense that he did not shoot, or intend to shoot, at him; that he fired at the sidewalk, and that May's injury was caused by the accidental glancing of the ball. During the course of the trial, appellant, as a witness in his own behalf, testified as to the size, style, and penetrating power of the pistol fired by him on the morning in question, and stated that it 'shoots almost like a rifle'; and thereupon his counsel proposed to introduce in evidence a cartridge like the one discharged from the revolver, for the purpose of showing that such a ball, having behind it such a charge of powder as the cartridge contained, and fired from such a powerful weapon, would penetrate a great deal further than the ball which struck May did, unless it met with some obstruction; and also to show, further, 'that this was a glancing shot, and could not have come directly from the gun of Surry.' Counsel for the state objected to the introduction of the cartridge in evidence for the alleged reason that it was irrelevant, immaterial, and incompetent, and then proceeded to argue to the court that every one who has had experience with pistols and firearms knows that loaded cartridges of the same kind do not all shoot with equal strength; that some are strong, some weak, and others do not explode at all; whereupon counsel for appellant requested the court to direct the jury to disregard the statement of the prosecuting attorney as to his and other people's experience with balls of this kind, as being entirely unfounded, and an unwarranted statement, for the purpose of prejudicing the jury. At this juncture the court remarked: 'I don't suppose the force of the ball changed its direction. I don't see anything so very improper about that at all. Your motion is refused.' The court then observed, 'The jury, anyhow, has no business to pay any attention to it;' and continuing: 'I don't think the testimony is material or admissible to prove the facts. If that bullet struck the sidewalk, its motion was impeded. It is common knowledge, if that bullet struck the sidewalk, its motion was very much impeded, and on the same angle that it went--The angle that it described after it left the sidewalk would be precisely the same as the angle it made from the mouth of the pistol.' Counsel for appellant then stated to the court: 'The defendant desires to except to the statement of the court made before the jury as to the angle that might have been taken by the bullet, or as to its motion, as a comment upon the evidence.' Thereafter, on cross-examination, appellant testified that there was property on the vacant lot on the corner of Madision and Second avenue (where the boys were) which he was employed to watch, mentioning particularly Thedinga's hardware store. Counsel for the state then asked him the question, 'What other property is there?' to which he replied. 'The Burke Building,--Burke Block.' Question: 'And you wish to tell this jury the Burke Block is in this vacant lot?' Answer: 'It is adjoining the vacant lot,--have to go through the vacant lot to get to that property.' Appellant's counsel then objected to this line of cross-examination, and said to the court: 'He has answered those questions that it was property adjoining the vacant lot he was employed to watch, not necessarily in that lot. He has testified to that time and time again. I don't know the object of counsel in pressing the matter,--a matter of this kind that is so plain and fully understood by the jury.' In response to this objection the court said to counsel: 'Objection overruled. Witness stated several times about buildings in the vacant lot. He has stated that there were things in that vacant lot. Go ahead.' These remarks of the court were also objected to as a comment on the evidence.

Section 16 of article 4 of the state constitution provides that 'judges shall not charge the jury with respect to matters of fact, nor comment thereon, but shall declare the law,' and this court has uniformly held that a violation of this provision by the trial court necessitates a reversal of the judgment. See State v. Walters, 7 Wash. 246, 34 P. 938, 1098; State v. Hyde, 20 Wash 234, 55 P. 49. In both of these cases it will be observed the objectionable remarks were addressed to the jury, and hence were literally violative of the mandate of the constitution. Here the case is different, the observations objected to having been directed to counsel. We do not, however, wish to be understood as holding that a judge, under this provision, is at liberty, during the progress of a trial, to comment in the presence of the jury on the facts which the jury must determine, in a way calculated to influence their action; yet it is manifest, from the language of the constitution, that its primary and special object was to prevent comments on the facts in evidence in connection with the instructions by which the jury are to be guided, and at a time when such comments would be likely to affect their minds. Prior to the adoption of the constitution, it was said to be the custom of some of our judges, either inadvertently or purposely, to indicate their opinions as to the...