State v. Walters

• Decision Date: 28 November 1893
• Citation: 34 P. 1098,7 Wash. 246
• Court: Washington Supreme Court
• Parties: STATE v. WALTERS.

34 P. 1098

7 Wash. 246

STATE v. WALTERS.

Supreme Court of Washington

November 28, 1893

For majority opinion, see 34 P. 938.

SCOTT, J., (dissenting.)

I think the court has given a wrong and altogether too rigid an interpretation of the constitutional provision prohibiting judges from charging juries with respect to matters of fact or commenting thereon, and one that will seriously embarrass the lower courts in the trials of causes. The object and intent of this provision is to prevent the judge from conveying his opinion of the truthfulness or untruthfulness of any part of the testimony to the jury, but not to prevent him from, in guarded language, instructing the jury what may be the legal effect of testimony if believed by them, or what credit it may or may not be entitled to as matter of law, nor from incidentally alluding to admitted facts. The strict interpretation here given is sustained by the courts of Texas, but I believe not elsewhere.

The Texas provision is that the judge "shall not express any opinion as to the weight of the evidence, nor shall he sum up the testimony." Parrish v. State, 45 Tex. 54. Ours is that "judges shall not charge juries with respect to matters of fact, nor comment thereon, but shall declare the law." It may be that ours is the more strict of the two, yet the evident intention is to prevent the judge from influencing the jury in finding as to the truthfulness of particular testimony. Now, he must declare the law, and the particular law declared must be with reference to the facts proved in the particular case, and must of necessity be, in a measure, a charge with respect to matters of fact.

It may be that the instruction complained of, relating to the recent possession of stolen property, was not aptly framed, yet in the light of the whole charge I do not think it was erroneous. It should not be held error for the court to instruct the jury that the recent possession of stolen property, if unexplained, is a circumstance tending to show the guilt of the defendant,-something that is universally conceded. The jury are left free to find as to the truthfulness of the testimony, and as to the weight that should be attached to it. Such an instruction, instead of commenting upon the facts, is rather declaring the law upon the facts, or informing the jury what the legal effect of certain testimony is or may be, or what authority they have a right to attach to it as a matter of law. It is not a comment on the facts. "Comment," as used here, means something in the nature of a criticism. If such an instruction is obnoxious to this provision, it is because it is a charge with respect to matters of fact. The provision of the California constitution is that "judges shall not charge juries with respect to matters of fact, but may state the testimony, and declare the law," (section 17, art 6;) and in that state a charge that the recent possession of stolen property is a circumstance tending to show guilt is authorized, ( People v. Fagan, 66 Cal. 534, 6 P 394.) It cannot be maintained that it is so because of the provision permitting judges to state the testimony, for it is not a stating of the testimony, nor does it purport to be. Such a charge can gain no additional sanction from this provision, and the other provision, preventing judges from charging with respect to matters of fact, is identical with ours. A judge would not be authorized to comment upon or criticise the testimony in California. He may state it, but otherwise the prohibition is fully as strong as our own, and if such a charge can be authorized under one of said constitutional provisions, it can be under the other. The sole purpose of such a provision is to prevent judges from charging juries with respect to matters of fact in such a way as to influence them in finding as to the truthfulness of the testimony. A literal, rigid enforcement of this provision, as viewed by the majority, will revolutionize the system of trials. Under such a strict interpretation as will prevent a judge from alluding to the facts, he would not be authorized to instruct the jury that the recent...