State v. Costello , 29 Wash. 366 ( 1902 )

The opinion of the court- was delivered by

Mount, J.

Appellant and one F. J. Fenton were charged in the court below with the crime of assault with intent to rob one Oscar Combs. Appellant demanded a separate trial, which was granted him. At the first trial the jury disagreed, and were discharged. Upon a retrial appellant was convicted, and from the judgment and sentence this appeal is taken.

I. When the case was called for retrial the defendant offered a plea of once in jeopardy, basing this plea upon the fact that the court had erroneously discharged the jury in the former trial. The court denied this plea. This ruling is assigned as error. It appears from the record of the first trial that the jury retired to consider their verdict on Tuesday, November 19, at 1 :!0 p'. m. Thereafter, on Wednesday, November 20, at 9:50 of clock a. m., the jury was called into court., whereupon the following proceedings were had: The judge, addressing the jury, said, “Gentlemen, have you agreed upon a verdict?” To which juror Coe replied, “No.” The judge then said, “Is there any prospect of an agreement?” To which juror Coe answered, “It seems not.” And another juror added, “We have stood one way for twelve hours.” The court thereupon discharged the jury. No objection was made thereto1. The clerk made thei following entry in his journal: “Jury brought into court room after being out all night without having reached a verdict, was discharged from further consideration of the case, and discharged for the day.”' It is no doubt the rule that an improper discharge of a jury is in effect an acquittal of a defendant on trial charged with a crime. 1 Bishop1, New Criminal Law, §§ 992-1013; 1 Bishopi, New Criminal Procedure, § 821; State v. Hubbell, 18 Wash. 482 (51 Pac. 1039). It is necessary to consider, therefore, whether or not the discharge of the jury under the circumstances in this case was proper.

The statute provides (Bal. Code, § 5006), “The jury may be discharged by the court ... by consent of both parties, or after they have been kept together until it satisfactorily appears that there-is no probability of their agreeing.” By this section the lower court is invested with a discretion to discharge a jury after- it has been kept together until it satisfactorily appears that there is no probability of their agreeing. This discretion must be based upon substantial grounds, and is subject to review ■ like any other legal discretion. It appears here that the jury had been considering the case for more than nineteen hours, and, that tvhen asked by the court if there was any prospect for an agreement, answered, “It seems not,” and • stated, “We have stood one way for twelve hours.” While in the question put by the court the word “probability” is not used, still we think the question and tbe answer clearly indicate that there was no reasonable probability of an agreement, and that, under the conditions existing, the court did not abuse his discretion in discharging the jury. In Penn v. State, 36 Tex. Cr. Rep. 140 (25 S. W. 973), it was said:

“It is within the discretion of the court to discharge the jury, and put an end to the trial, and the case will not be reversed on account of the action of the court in this regard, unless there is a clear abuse of discretion.”

In the case of People v. Goodwin, 18 Johns. 187 (9 Am. Dec. 203), the court said:

“I am of the opinion that, although the power of discharging a jury is a delicate and highly important trust, yet, that it does exist in cases of extreme and absolute necessity; and that it may be exercised without operating as an acquittal of the defendant; that it extends as well to felonies as misdemeanors; and that it exists, and may discreetly be exercised in cases where the jury, from the length of time they have been considering a cause, and their inability to agree, may be fairly presumed as never likely to agree, unless compelled so to do from the pressing calls of famine or bodily exhaustion.”

In Logan v. United States, 144 U. S; 263 (12 Sup. Ct. 617), the court says:

“The plea of former jeopardy was rightly held .bad. It averred that the discharge of the jury at the former trial without the defendants’ consent was by the court, of its motion, and after the jury, having been in retirement to consider- their verdict for .forty hours, had announced in open court that they were unable to agree as to these deu fendants. The further averment that There existed in law or fact no emergency or hurry for thei discharge of said jury, nor was said discharge demanded for the ends of public justice,’ is an allegation, not so much of specific And traversable fact, as of inference and opinion, which cannot-control the effect, of the facts previously alleged. Upon those facts, whether the discharge of the jury was manifestly necessary in order to prevent a defeat of the ends of public justice, was a question to be finally decided by the presiding judge in the sound exercise of his discretion.”

See, also, Wharton, Criminal Pleading & Practice (9th ed.), § 499 el seq.; United States v. Perez, 9 Wheat. 579; People v. Shotwell, 27 Cal. 394; In re Allison, 13 Colo. 525 (22 Pac. 820, 10 L. R. A. 790, 16 Am. St. Rep. 224); Williford v. State, 23 Ga. 1; Lovett v. State, 80 Ga. 255 (4 S. E. 912); Jones v. Commonwealth, 86 Va. 740 (10 S. E. 1004).

2. During the trial the court permitted the prosecutor to introduce in evidence a short piece of garden hose which was filled with sand, and which was found the1 next morning after thei alleged assault near where the assault occurred, and in the direction the assailant had fled immediately after the assault. This evidence was objected to because the piece of hose was not traced to the, possession of the defendant. The person who committed the assault was unknown to the prosecuting witness, and was not seen by him, and no one testified to seeing the defendant with this piece of hose. The only evidence connecting defendant with the crime was circumstantial. The evidence shows that the defendant, at about the time the crime was committed, was in the immediate vicinity, and that this piece of hose, sometime during the night on which the crime was committed, was cut from, a garden hose hanging on a fence near by. That the wound on the head of the prosecuting witness ivas such a wound as would be made by a blow from such an instrument. We think the evidence ivas proper to go to the jury as a circumstance in the case.

3. While the defendant’s attorney ivas making his argument to the jury he quoted from the evidence of one of the witnesses. In reply to this argument the prosecuting attorney read the direct testimony of this witness from the reporter’s transcript thereof, but refused, upon request of defendant’s attorney, to read the cross examination. Error is assigned — first, that the prosecuting attorney was permitted to read any of the evidence from the reporter’s notes; and, second, that he was permitted to read only a part thereof. The range of the argument of counsel rests largely in the discretion of the trial judge. Unless this discretion is abused to the prejudice of a defendant, an appellate court will not reverse a case for this reason alone. Chezum v. Parker, 19 Wash. 645 (54 Pac. 22); State v. Bokien, 14 Wash. 417 (44 Pac. 889). The prosecuting attorney has a right to quote the evidence, or any part of it, to the jury, and whether he quotes it from' his own memory or from notes he has made, or from notes or a transcript made for him, can make no difference so long as it is quoted correctly. There is no contention in this case that the evidence read by the prosecuting attorney was not the evidence of the Avitness. ISTo prejudice, therefore, could result.

4. It is next claimed that appellant- is entitled to a new trial, because the minutes of the clerk do not show that the defendant was present at the trial at all times. The minutes, however, do show that the defendant Avas present at the beginning of the trial, and also at the ■ time the sentence was pronounced. They further show, after an adjournment, upon reconvening, as follows: “Court opened with Judge Denney on the bench and jury in charge of bailiff and all present-” There is no showing, nor is it claimed, that the defendant was not present in court at all times during the trial. While it is undoubtedly the rule that a defendant charged with a felony must be present at all times during the trial, and that this fact should appear affirmatively upon the record, •••yet, where it appears that the defendant is present at the beginning of the trial, the presumption must follow that he was present during the remainder of the trial unless it appears otherwise by an affirmative showing. Grimm v. People, 14 Mich. 300; Padfield v. People, 146 Ill. 660 (35 N. E. 469); Schirmer v. People, 33 Ill. 276; State v. Collins, 33 La. An. 152; State v. Cox, 33 La. An. 1056; Jeffries v. Commonwealth, 12 Allen, 145; State v. Ryan, 13 Minn. 370; State v. Lewis, 69 Mo. 92; State v. Yerger, 86 Mo. 33.

It is contended that the court erred in not arresting judgment for the reasons (1) of informalities in the judgment; (2) because the superior, court is described as a superior court of the state when it is a superior court of the county; and (3) because there is no law defining an ' assault with "intent to commit a felowy.” The first two of these grounds are entirely without merit. As to the third the charging part of the information is as follows:

“Comes now, H. D. Cooley, . . . and by this, his information, accuses F. J. Fenton and Edward Costello of the crime of assault with intent to commit a felony, committed as follows, towit: That in the county of Snohomish and state of Washington on the 19th day of October, 1901, the said F. J. Fenton and Edward Costello, in and upon the person of one Oscar Combs, unlawfully and feloniously did make an assault, with intent then and there, unlawfully and feloniously, by violence and putting in fear, from the person of him the said Oscar Combs, the moneys, goods, and chattels of the said Oscar Combs to take, steal and carry away; contrary to the form of the statute in such case made and provided and against the peace and dignity of the state of Washington.”

The statute, at §7057, Bal. Code, provides, “An as-' sault with an intent to commit murder, rape, the infamous crime against nature, mayhem, robbery, or grand larceny shall subject the offender to imprisonment,” etc. The information charges the defendant with the crime of “assault with intent to commit a felony.” The particular felony is not named in that part of the information, but, immediately following, the facts are stated which show the felony to be robbery. The defendant could not have been misled as to the particular felony which was clearly charged against him. Under the very liberal provision of §§ 6850 and 6851 the information was sufficient.

We find no error in the record. The judgment- is affirmed.

Beavis, C. J., and White, Hadley, Fullerton, Anders and Dunbar, JJ., concur.