State v. Welty

• Decision Date: 04 October 1911
• Citation: 118 P. 9,65 Wash. 244
• Court: Washington Supreme Court
• Parties: STATE v. WELTY.

118 P. 9

65 Wash. 244

STATE v. WELTY.

Supreme Court of Washington

October 4, 1911

Department 2. Appeal from Superior Court, Whatcom County; Ed. E. Hardin Judge.

H. J Welty was convicted of crime, and he appeals. Affirmed.

The ruling of the trial judge on a motion for a new trial on controverted questions of fact will be disturbed only in case of an abuse of discretion.

S. M Bruce, T. D. J. Healy, A. E. Barnes, Black & Black, and Curtis E. Abrams, for appellant.

Frank W. Bixby and J. W. Kindall, for the State.

MORRIS J.

Appellant was tried and convicted upon an information charging that, on the 31st of December, 1909, he was president of the Home Security Savings Bank of Bellingham, and as such officer of such bank accepted and received a deposit of $400, knowing and having good reason to believe said bank to be then insolvent. From such conviction and the judgment imposed thereon, he appeals, urging a number of errors, which will be treated in the order raised.

The first error assigned is that the trial court erred in denying him a change of venue. The application for such change was based upon his own affidavits, that of one of his counsel, and 41 others from various residents of Whatcom county, together with numerous exhibits from the files of two Bellingham newspapers, containing local and editorial reference and comment upon the affairs of the bank, and appellant's connection therewith, which it is alleged 'created an excitement and prejudice in the public mind, extending throughout Whatcom county, * * * prejudicing the interests of defendant' to such an extent that he could not have a fair and impartial trial. The affidavit of his counsel is to the effect that such great prejudice against defendant existed that it would be impossible to procure a fair and impartial trial jury. The other affidavits are all alike, and set forth that the affiant 'is familiar with the sentiment of the people in the said neighborhood concerning the charges against the defendant; that the opinion prevailing in said neighborhood is adverse to the defendant and unfavorable to his interests, and affiant believes such a prejudice exists and has been created as would make it difficult to obtain jurors who were unbiased in their opinion for the trial in said county because of such opinion and prejudice.' No good purpose would be served by making special reference to the excepts from the newspapers; they are many, covering a period from April to September. Some of them are bitter attacks upon defendant and his management of the bank, extremely denunciatory of his actions in connection with the matters complained of, and show a decided opinion as to defendant's guilt. Many of them go away beyond justifiable newspaper comment upon a matter of public concern, and are evidently intended to create a prejudice against the defendant and his financial operations. We are, however, not concerned with the character of the articles, but their effect upon the public mind of Whatcom county, and the contention of defendant that they created such a prejudice against him that he could not hope for a trial by a fair and impartial jury in his home county. Opposed to this showing, the state files 199 affidavits from residents in various sections of the county to the effect that no prejudice or adverse sentiment exists against defendant, preventing him from having a fair and impartial trial in Whatcom county. Upon the hearing of this application the court denied the change, handing down a written opinion, in which it finds that 'the extent of the business relations of the bank was not so great as to disqualify any considerable number of jurors;' that the organization of the depositors referred to in defendant's affidavit was primarily for the purpose of protecting their interests as creditors of the bank, and no more activity was displayed in this connection than would ordinarily occur in cases of bank failure, and that the newspaper articles have created no such excitement or prejudice against defendant as to prevent the impaneling of a fair and impartial jury; that while some of the people of the county are prejudiced against defendant, the number is small, and no more than is usual in cases of like character.

Our statute relative to change of venue in criminal cases is found in sections 2018 and 2019, Rem. & Bal. Code. 'The defendant may show to the court by affidavit that he believes he cannot receive a fair trial in the county where the action is pending, owing to the prejudice of the judge, or to excitement or prejudice against the defendant in the county, or some part thereof, and may thereupon demand to be tried in another county. The application shall not be granted on the ground of excitement or prejudice other than prejudice of the judge, unless the affidavit of the defendant be supported by other evidence; nor in any case unless the judge is satisfied the ground upon which the application is made does exist.' '* * * If the affidavit is founded upon excitement or prejudice in the county against the defendant, the court may in its discretion grant a change of venue to the most convenient county.' It is apparent from a reading of these sections that the granting or denying of the change of venue is a matter resting entirely in the sound judicial discretion of the trial judge. Such being the statute, the ruling of the trial court cannot be reversed upon appeal, unless the record contains some evidence of its gross abuse, or it is shown that the court's ruling was arbitrary. Such has been our holding whenever such a question has been before us. McAllister v. Washington Territory, 1 Wash. T. 360; Edwards v. State, 2 Wash. 291, 26 P. 258; State v. Straub, 16 Wash. 111, 47 P. 227; State v. Champoux, 33 Wash. 339, 74 P. 557. Such, also, is the general rule in construing statutes of like import. 12 Cyc. 243.

The rule is not only based upon the statute, but is founded in reason. The trial judge is generally familar with the local situation; he knows the prevailing sentiment of the people, in so far as it finds oft-repeated expression; he knows all the facts and circumstances proper to be considered in determining the matter; he may know the persons who make affidavits suggesting undue excitement or prejudice, and can properly estimate the weight to be given such affidavits. A judicial discretion exercised under such circumstances should not be interfered with, unless its abuse is so clearly manifest as to call for a reversal. This necessitates a careful review of the showing made and the ruling of the court thereon, in order to determine the existence or absence of abuse in the ruling complained of. Kelly v. State, 52 Ala. 361; State v. Humphreys, 43 Or. 44, 70 P. 824.

Having made such an examination of this record, we cannot say it discloses any evidence that the trial judge was unmindful of his whole duty, and has abused the power vested in him by the law. We have referred to the character of the newspaper articles sent up as exhibits; their denunciatory style and prejudicial intent is not of itself evidence of undue excitement or prejudice on the part of the people of Whatcom county. These articles evidence plainly the opinion of those controlling the utterances of the papers, and the evident policy of their management; but they cannot be accepted as voicing the sentiment of the people to such an extent as to prevent the trial of defendant before a fair and impartial jury of Whatcom county. It must appear, before we would be justified in reviewing the trial court's ruling, that the community has been so warped by the passion and prejudice of the newspaper articles complained of that there is danger of the trial jury being so influenced by such publication as to give heed to them, rather than to the evidence, in reaching a verdict. Muscoe v. Commonwealth, 87 Va. 460, 12 S.E. 790; Hickam et al. v. People, 137 Ill. 75, 27 N.E. 88; Jamison v. People, 145 Ill. 357, 34 N.E. 486; State v. Barton, 8 Mo. App. 15; State v. Rhea, 25 Kan. 576.

It is to be regretted that when a citizen is charged with a crime newspapers should seek to mold public opinion, either for or against the accused, and seek to establish his guilt or innocence. Such is not a legitimate field for newspaper enterprise, and is contrary to the spirit of our institutions. Trial courts and jurors have been established to determine that question, and they should be left free to do so without suggestion or advice. The matter is, however, to be judicially determined by the effect of the publication, and not its purpose, and until there is satisfactory evidence that such purpose has been accomplished the case must be left to take its ordinary course. That the effort failed of accomplishment in this case is to be assumed from the fact that defendant has failed to bring before us the examination of the jurors on their voir dire. Not having done so, we can safely assume nothing unusual was disclosed in such examination, and that there was no great difficulty in obtaining a jury because of the publication of these articles.

Edwards v. State, supra: State v. Pomeroy, 30 Or. 16, 46 P. 797. Appellant relies upon State v. Hillman, 42 Wash. 615, 85 P. 63. In that case there was no contrary showing on the part of the state; there was therefore nothing upon which the discretion of the court could act; it was therefore error to fail to give effect to the uncontroverted facts as shown in the moving papers.

The next assignment is that the court erred in admitting evidence of the value of certain securities held by the bank, and the general reputation for solvency of the makers of certain notes held by the bank. We will not make special reference to these objections, as there are a number of them,...