State v. Tharp
| Decision Date | 28 April 1953 |
| Docket Number | No. 32111,32111 |
| Citation | 256 P.2d 482,42 Wn.2d 494 |
| Court | Washington Supreme Court |
| Parties | STATE, v. THARP. |
W. R. Cole, Ellensburg, Lincoln E. Shropshire, Yakima, for appellant.
Warner, Pierce & Peden, Seattle, for respondent.
Defendants Tharp and Olds were charged jointly with the crime of grand larceny. Mrs. Olds was acquitted by the jury. Tharp was found guilty, and has appealed from the judgment and sentence entered on the verdict.
The information, as amended, alleged that defendant received one red, white-faced steer by reason of a mistake and, with knowledge of the mistake, appropriated the animal to his own use. Rem.Rev.Stat., § 2601(4), RCW 9.54.010(4).
There was sufficient evidence to establish the following facts to support the verdict: that defendant, ranch foreman for Mrs. Olds, was instructed to butcher one of her black Angus heifers; that defendant planned to shoot it when it was released from a corral; that two other cattle, including a red, white-faced steer, escaped from the corral with the black heifer when it was released; that defendant's shot missed the black heifer, but hit the red steer, wounding it severely; that defendant knew as soon as he hit this animal that it was not the property of Mrs. Olds; that defendant then shot again and killed the wounded animal, and proceeded to butcher it; that this animal bore the registered brand of its alleged owner, and that both its ears were cropped; that none of the Olds cattle was so marked; that defendant did not see these identifying marks until after he had killed the animal; that he then learned that it was the property of its alleged owner; and that defendant concealed the head and hide of the dead animal before his arrest.
Defendant argues that the proof varied from the charge, in that the language of the information must be taken to mean one live steer, and that there was no proof of the felonious appropriation of a live steer by defendant. This argument must fail because there was evidence upon which the jury could have decided that defendant knew of his mistake before he killed the animal. See State v. Crossman, 1937, 189 Wash. 124, 128, 63 P.2d 934.
Evidence of the nature of the offense was admitted without objection, and any possible variance between the pleading and proof was cured by the operation of Rule of Pleading, Practice and Procedure 12, 34A Wash.2d 76. This rule provides that:
'* * * An information shall be considered amended to conform to the evidence introduced without objection in support of the crime substantially charged therein, unless the defendant would thereby be prejudiced in a substantial right.'
The amendment under the rule did not prejudice any substantial right of defendant. It charged no crime different from that substantially charged in the information or under a different section of the criminal code. If considered amended by the proof, it remained a charge of a violation of Rem.Rev.Stat., § 2601(4), RCW 9.54.010(4). See State v. Olds, 1951, 39 Wash.2d 258, 261, 235 P.2d 165. Also, no question of variance was raised in the trial court, and it cannot be raised successfully for the first time on appeal.
Defendant also challenges the sufficiency of the proof to establish the allegation in the information relative to ownership of the animal. One of the exhibits admitted in evidence is the brand certificate issued to the alleged owner by the state department of agriculture, in accordance with Rem.Rev.Stat. (Sup.), § 3055-4, and Rem.Supp.1949, § 3055-5. It had expired September 1, 1950, which was about six weeks before the alleged offense occurred. The statute last cited provides that, on the expiration date, the director of agriculture shall notify the brand owner to renew the brand, and that it shall not be forfeited unless the owner fails to renew it within six months after this notice. The brand in question was of record at the time of the offense, and the certificate was admissible as evidence of the ownership of the steer in question. Rem.Rev.Stat. (Sup.), §§ 3055-3, 3055-9. Evidence of its ownership also was given by the manager of the owner's ranch, and by the sheriff, who testified that defendant stated to him that he knew it was the property of this ranch owner.
Error is assigned to the giving of an instruction that the brand of an animal is prima facie evidence that the animal belongs to the owner of the brand. This assignment is without merit. This instruction is not a comment on the evidence. It is in the language of the pertinent portion of the statute. Rem.Rev.Stat. (Sup.), § 3055-9. (The statutes cited, pertaining to animal brands, are found in RCW, chapter 16.56, but that compilation presently differs from the session laws, both in language and in section division.)
On the first day of the trial, defendant's counsel, who are not his counsel on this appeal, argued their motion for leave to withdraw from the defense. The court delayed the taking of nay testimony until the following morning to permit defendant to obtain other counsel. The next morning, when court reconvened, counsel who had made the request to withdraw appeared with defendant and stated that they were ready to proceed, and did so without further objection. They had represented him at a previous trial of the case. In view of their announcement and their familiarity with the facts, the court could not well have refused to allow them to proceed as counsel, and defendant cannot claim successfully that he was prejudiced in this regard. Questions presented by such a request are directed to the sound discretion of the trial court. Defendant shows no abuse of that discretion in this instance. See State v. Bird, 1948, 31 Wash.2d 777, 783, 198 P.2d 978.
Defendant's principal argument for a new trial is based on his claim that, through inadvertence, no oath was administered to the prospective jurors before the voir dire examination to determine their qualifications to sit as jurors to try the cause.
The record shows that the case was called for trial on Monday, February 4, 1952. Because of certain preliminary motions, it was agreed that the prospective jurors should be examined and a jury selected on the morning of that day, and the taking of testimony delayed until the next day. Defendant and his counsel were present while the jury was selected, and, when it was completed, the jurors were sworn to try the cause and excused until the following morning. Defense counsel knew of the probable omission of the voir dire oath not later than, and possibly before, the adjournment of court on Tuesday afternoon. The trial continued for two days after this discovery. Defendant's counsel did not direct the court's attention to the claimed omission or make any motion or objection in regard to it until after the verdict was received.
While there is no statute requiring it, an oath should be administered to prospective jurors before their voir dire examination. The limits and extent of this examination are within the discretion of the trial court, and it has considerable latitude in this regard. The accused should be permitted to examine carefully and to an extent which will afford him every reasonable protection. The purpose of the inquiry is to enable the parties to learn the state of mind of the prospective jurors, so that they can know whether or not any of them may be subject to a challenge for cause, and determine the advisability of...
To continue reading
Request your trial
-
State v. Laureano
...to examine prospective jurors carefully, "and to an extent which will afford him every reasonable protection." State v. Tharp, 42 Wash.2d 494, 499, 256 P.2d 482 (1953). The scope of voir dire should be coextensive with its The purpose of the inquiry is to enable the parties to learn the sta......
-
State v. Elmore, 64085-8.
...failed to raise any objection in the trial court about the State's voir dire questioning of potential jurors. See State v. Tharp, 42 Wash.2d 494, 501, 256 P.2d 482 (1953) (selection of the jury is procedural and error regarding same not timely raised to trial court bars its consideration on......
-
State v. Salvador
...cited by Clark as the "well-settled case law" underlying its decision involved challenges to a specific juror. See State v. Tharp, 42 Wash.2d 494, 500, 256 P.2d 482 (1953) (challenge to the trial court's failure to administer the juror oath raised for the first time on appeal); State v. Col......
-
State v. Talbott
...they do not have the right to appeal "based on the jury's composition." 143 Wash.2d at 762, 24 P.3d 1006 (citing State v. Tharp , 42 Wash.2d 494, 500, 256 P.2d 482 (1953) ; State v. Collins , 50 Wash.2d 740, 744, 314 P.2d 660 (1957) ; State v. Robinson , 75 Wash.2d 230, 231-32, 450 P.2d 180......