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the crime of which he is charged. He comes in here upon the trial of this case (or both of them in this case) with that presumption --that they are innocent. That is a principle the court will announce to you is the law. Now, in entering the trial of this case are you in that state of mind that you now consider that he is innocent? A. Well, not knowing anything of the case, I could not say. Q. I have stated, Mr. Cleaver, that it is a principle of law that a juror must entertain, and that is that every man charged with the commission of a crime is presumed to be innocent until the state proves him guilty. Now, are you in that state of mind that you now presume the defendants to be guiltless? A. Well, of course, that depends a great deal. Q. Well, does that depend upon what the evidence will be? Is that what you mean? A. If the evidence is strong enough, why, he certainly would be innocent. Q. I don't think you comprehend exactly the principle that I have tried to enunciate. That is this: The law is that every person charged with the commission of a crime is presumed to be innocent. That is a presumption that is in his favor. It is that much evidence in his favor at the start. He is presumed to be innocent, and it requires that a juror should hold that, in his mind at the start, he is innocent, and that they demand of the state that they prove him guilty beyond a reasonable doubt. Now, are you in that condition of mind that you now consider the defendants guiltless, and that you will demand of the state that he be proven guilty beyond a reasonable doubt? A. I am not; no, sir. Q. Do I now understand that you now have an impression as to the guilt or innocence of the defendants? A. No, not exactly, no. A man that has been charged that he committed the crime, why I think, to a certain extent, that is—I form an opinion right there. Mr. Naylor: I challenge the juror. The Court: Mr. Cleaver, if the court instruct you that the law is that the defendant is presumed to be innocent until he is proven guilty beyond a reasonable doubt, and that, in weighing the evidence, you will have to weigh it with that presumption in his favor until the evidence does show that he is guilty beyond a reasonable doubt, you are in a condition of mind that you can do that, remember that principle of law and apply it in this case? A. I think I could; yes. The Court: The challenge is denied. Mr. Naylor: Just one question more. Does the fact that the defendants are charged with the commission of a crime, does that fact influence your mind? A. Yes sir, it does. Q. It does ? A. Yes, sir. The Court: The challenge is denied. I think that is a thing common to-Mr. Naylor: Just one thing more before I except to the ruling of the court. I understand you to say, now, because the prosecuting attorney has charged the defendants with the commission of this crime, that that fact of his having charged

the defendants with the commission of this crime fixes in your mind an opinion that they are guilty? A. Yes, sir. Q. And that it would take evidence to remove that opinion formed in your mind? A. It certainly would. The Court: Now, Mr. Cleaver, let me ask you: The fact that the prosecuting attorney has charged the defendants with the crime leads you to think that there must be some ground for it? A. Yes. Q. But that wouldn't influence your judgment? You would depend entirely upon the law and evidence, wouldn't you, in the trial of the case? A. Possibly. Q. You say possibly? A. Possibly, yes.

Q. Don't you know that you would decide it according to law and evidence? A. Well, I couldn't say; no. Q. You think that the fact that anybody charges another with a crime is sufficient to let you find him guilty on that alone, without any evidence? A. Well, I want the evidence, of course. Q. You would require evidence? You would require the state to prove him guilty before you would find him guilty, wouldn't you? A. I expect I would, yes. Q. Well, you know it is the duty of every juror to require evidence before you find a man guilty? A. Yes, sir. Q. And you would do that? A. I will do that." The balance of the statement is only a repetition, in substance, of what we have set out.

It is contended by the appellants that the examination shows prejudice on the part of the juror to such an extent that the rights of the appellants were imperiled by his acting on the jury, and the cases decided by this court, viz., State v. Murphy, 9 Wash. 204, 37 Pac. 420; State v. Wilcox, 11 Wash. 215, 39 Pac. 368; State v. Rutten, 13 Wash. 203, 43.Pac, 30; State v. Moody, 18 Wash. 165, 51 Pac. 356; State v. Lattin, 19 Wash. 57, 52 Pac. 314; State v. Stentz, 30 Wash. 134, 70 Pac. 241; and State v. Riley, 36 Wash. 411, 78 Pac. 1001-are cited to sustain this contentior. But an examination of those cases convinces us that they do not reach the material point in this case. Jurors possess so many degrees of intelligence that it is difficult to lay down a uniform rule in regard to their qualifications. An answer made by one juror may mean one thing. The same answer made by another juror may disclose an entirely different state of mind on the part of the juror. The different manner in which questions are propounded by attorneys and by courts elicits different answers from the jurors, although the same subject-matter is under discussion. In the cases cited by the appellants, it appeared that the jurors entertained opinions on the guilt or innocence of the party being tried, and it was held that, when that condition of mind existed in a juror, he was not an impartial juror under the constitutional guaranty that a defendant in a criminal action shall be entitled to an impartial jury of the county in which the of fense is alleged to have been committed. But it will be noticed in this case that there is

rio discussion of the guilt or innocence of being no other error assigned, the judgment the parties charged. In fact, the record is affirmed. shows that the juror testified unequivocally that he never had heard of the case, and that MOUNT, C. J., and FULLERTON and he had no impression or opinion as to the RUDKIN, JJ., concur. ROOT, CROW, and guilt or innocence of the defendants. The HADLEY, JJ., dissent. trouble is that the learned counsel for the defendants, instead of examining the juror in relation to his knowledge of this case and

(45 Wash. 154) his bias or prejudice in regard to the guilt JOHNSTONE v. SEATTLE, R. & S. RY. CO. or innocence of the defendants, entered in- (Supreme Court of Washington. Dec. 22, 1906.) to a discussion with him on abstract prin- 1. CARRIERS-INJURIES TO PASSENGERS—Evr. ciples of law, which it is evident from the DENCE.

In an action for injuries to a passenger whole colloquy the juror did not understand.

caused by a collision of defendant's street railNow, in answer to the first query the juror

way cars, the speed at which the cars collided said: "Well, not knowing anything of the and the injury to them was material to show case, I could not say." It would be hard to

the force of the collision, and the force of the

collision was material to show the probabilities conceive of a more natural and correct an

as to whether plaintiff was injured, and the swer to such a question. A person not nature and extent of the injury. knowing anything about the case could not [Ed. Note. For cases in point, see Cent. Dig. possibly consider the defendant guiltless- vol. 9, Carriers, § 1302.] he would simply not have any opinion on 2. TRIAL-INSTRUCTIONS-LANGUAGE. the subject. The old common-law illustra

An instruction that the "preponderance"

of evidence means the "best" evidence was not tion was that a juror's mind on the subject of

inappropriate nor objectionable as tending to guilt or innocence should be like a blank

mislead the jury, the term "best evidence" sheet of paper, ready to receive impressions obviously not having been used in the technical from the testimony presented. The juror

sense. evidently failed to understand and compre

[Ed. Note.-For cases in point, see Cent. Dig.

vol. 46, Trial, SS 549, 550.] hend the difference between a legal assump

3. New TRIAL — GROUNDS - MISCONDUCT OF tion of innocence and the fact that he be

PARTIES-PREJUDICIAL PLEADING. lieved the defendants to be innocent beyond Though it is reprehensible to plead allegaa reasonable doubt, and, as soon as he under- tions tending to prejudice the jury, with no stood from the instructions given him by the

intention of attempting to prove them, before

a new trial should be granted upon that ground court that he was to act upon the legal as

alone, the abuse should be flagrant, and its sumption that the defendant was innocent prejudicial effects plainly evident, or exceeduntil he was proven guilty, he properly ex

ingly probable. pressed his capability to so act. The juror

[Ed. Note.For cases in point, see Cent. Dig.

vol. 37, New Trial, $ 24.] indicated that the fact that the prosecuting attorney had informed against the defend

Appeal from Superior Court, King County; ants led him to presume that there was some

George E. Morris, Judge. evidence of their guilt. This practically is

Action by Grace T. Johnstone against the not a violent assumption on the part of a

Seattle, Renton & Southern Railway Comjuror or any other citizen, and is one which pany. From a judgment for plaintiff, de is naturally indulged in by a person who fendant appeals. Affirmed. presumes that the officers of the law do their

Sachs & Hale, for appellant. Rossman & duty. It does not necessarily go to the ex- Johnson, for respondent. tent of an opinion that the officer has accumulated sufficient evidence to prove the ROOT, J. This is an appeal from a judgdefendant guilty, or to overcome the pre- ment for $3,500, for damages sustained in a sumption of innocence. But it certainly personal injury case. Respondent was a ought not to disqualify a citizen to act as a passenger on appellant's street railway car, juror, to believe that an information would when the latter collided with another of not be filed unless there was some evidence appellant's cars. The answer admitted the to sustain it. And such a belief in no way collision, but denied the extent of the ininterferes with the impartial condition of juries sustained by respondent. The trial mind with which he ought to approach the court, among others, gave the following inposition of a juror under the law. When it struction: "The speed at which these cars appears that the juror knows nothing of the collided and the injuries to the car are macircumstances of the case, and is in no way terial only so far as they may serve to esprejudiced for or against the defendant, nor tablish the force of the collision, and the against the crime, which is the subject of force of the collision is material only in so the investigation, and has avowed his will- far as it may serve to establish the probabiliingness to accept the law as given by the ties as to whether or not the plaintiff was incourt, he may be safely left to the instruc- jured, and the nature, kind, character, and tions of the court concerning the general extent of that injury.” Appellant argues principles of law applicable to the case. that from this instruction the jury had a

It not appearing that the challenge was right to presume that plaintiff was injured wrongfully denied by the court, and there as testified by her, and that in determining

the character and extent of her injuries they that the language of the trial court was should be influenced by the evidence as to calculated to, or did, mislead the jury, or the force of the collision, and the damage that it was inappropriate for the explanation occasioned to the cars thereby, and that and direction which the court was endeavorthis would be improper. We do not think ing to give. the instruction was erroneous. The main It is next urged by appellant that the coinissue was as to the extent of respondent's in- plaint contained a large number of allegajuries. While the force of the collision and tions which it was evident there was no inits effect upon the cars would not be con- tention of proving or attempting to prove, clusive, or exclusively controlling, considera- and as to which there was no evidence offered, tions in determining the character or extent and that their presence was calculated to of respondent's injuries, yet these facts and prejudice the jury against appellant. The circumstances, we think, were well calcu- placing in pleadings of numerous allegations lated to aid the jury in properly weighing which the pleader has no intention or expecand understanding the evidence given as to tation of proving or attempting to prove, the character and extent of said injuries, when such allegations are of a character caland the particular manner in which they culated to prejudice or unduly affect the were occasioned. We think there was noth- jury, is a reprehensible practice, and in flaging in said instruction calculated to mis- rant cases may justify the trial court in lead the jury, or prejudice appellant's rights. withholding the complaint or those portions

The trial court also gave the following in- of the complaint from the jury, or possibly struction to which exception was taken by in granting a new trial, if it is reasonably appellant: "By this term “preponderance of probable that the presence of these extrinsic the evidence as I have used it in these in- and inflammatory matters was due to bad structions, is meant the best evidence; that faith, and they were such as may probably which appeals to your intelligence as furor's, lave unduly influenced the jury to the suband as men versed in the ordinary affairs of stantial detriment of the opposing party. life, as being the most probable happening- But before a new trial could be granted upon being the most probable event. Now, the this ground alone, the abuse mentioned evidence which satisfies your mind upon should be a flagrant one, and its prejudicial that score is always the best evidence-is effects upon the jury plainly evident or exalways the evidence that is entitled to your ceedingly probable. We do not think that consideration, and that is what the law this is a case of that kind. means when it uses this expression “prepond- Lastly, it is urged that the verdict herein erance of evidence.' It means evidence of was excessive, and that the trial court should that character; evidence which appeals to have reduced the amount. There is a conyour judgment and to your intelligence as flict in the evidence as to some of the cirestablishing certain facts; and in determin- cumstances immediately attending the injury ing that, you should look to the witnesses; to respondent, as well as to the injuries apwho they are, and what they are; their in- parent at that time, and a wide divergence terest in the case; their means of knowing in the opinion of the medical experts who the facts concerning which they testify; testified in the case. There is an abundance their manner of testifying-all these things of evidence which, if believed, would justify should be taken into consideration by you the amount awarded by the jury. in determining where the preponderance of Finding no prejudicial error in the record, evidence is." Appellant urges that the court the judgment of the superior court is afherein told the jury that the “preponderance firmed. of the evidence" was the "best" evidence, and that the jury inight naturally have con

MOUNT, C. J., and CROW, DUNBAR, cluded that the party injured could give the

HADLEY, and FULLERTON, JJ., concur. best evidence as to whether or not she was injured, and as to the extent and nature thereof, and that they might be controlled

(45 Wash. 184) by that, even though the preponderance or

SWAIN V. SWAIN. weight of the evidence was the other way. We do not think this position tenable. It (Supreme Court of Washington. Dec. 29, 1906.) is evident that the trial judge did not use

DIVORCE-ABANDONMENT-FAILURE TO PROthe expression "best" evidence in its techni- VIDE—CONDUCT OF PLAINTIFF. cal sense, but used the term for the purpose

Where a statute provided that divorce

might be granted by the superior court on apof explaining to the jury, in a plain and

plication of the party injured for abandonpractical manner, what was intended by the

ment for one year, or for neglect and refusal expression “preponderance of the evidence.of the husband to make suitable provision for While the distinction between technical legal

his family, and plaintiff proved that defendant

abandoned her and their children while they terms is readily observed by those exper

were asleep, left them to support themselves, ienced and familiar with such matters, it is or become the objects of the charity of friends, nevertheless frequently imperceptible to the

and pay debts which defendant made and left

unsettled, though he was able to care for his lay mind, which is wont to give such terms

family, plaintiff was entitled to a divorce as a their ordinary meaning. We do not believe matter of law, though she appeared indifferent on the witness stand to his again living with testimony convinces us of no indifference or maintaining her.

other than might naturally be expected as a [Ed. Note.-For cases in point, see Cent. Dig.

result of the humiliation and neglect to vol. 17, Divorce, $8 107–138, 446, 447.]

which she had been subjected. It does Appeal from Superior

Superior Court, Spokane | not appear that appellant knew of respondCounty; W. A. Huneke, Judge.

ent's intention to leave her and the family, Action by Hattie E. Swain against Ed. and her counsel pertinently suggest that S. Swain. From a judgment of dismissal, her failure to object to his leaving at the plaintiff appeals. Reversed.

time is not extraordinary in view of the

fact that she did not know he was going, and Barnes & Latimer, for appellant. A. J.

that he left while she and her family were Langhon, for respondent.

asleer. The fact that this woman, who with

her family had been abandoned and left to ROOT, J. This was an action instituted

support themselves, or to be the objects of by plaintiff to obtain a decree of divorce

the charity of friends, and to pay the debts from the defendant upon the ground that which her husband had made and left unthe latter had failed and neglected to pro- settled, appeared upon the witness stand vide her and their minor children with

indifferent to his again living with or mainsuitable support. Personal service of sum- taining her can hardly be characterized as mons and complaint was had in Spokane

an unusual occurrence under the circumcounty upon the defendant, who defaulted. stances. While this court does not believe in Thereupon the prosecuting attorney appear- being liberal in the granting of divorces. ed for the state, and resisted the action.

yet we think that this appellant, by the unFrom a judgment of dismissal this appeal is contradicted evidence produced, brought her taken.

case so completely within the terms of the The evidence showed that for some months

statute that there was left no room for prior to leaving appellant the respondent judicial discretion. The statute says: "Dihad failed to support her or the children;

vorces may be granted by the superior court that one morning, before they were up, he

on application of the party injured, for the had departed from his home, and had le

following causes:

(4) Abandonmained continuously absent ever since, ment for one year.

(6) The nea period of over one year, excepting on two glect or refusal of the husband to make suitoccasions when he called at the house, re

able provision for his family.” In this case maining but a few minutes each time. Dur

there was an absolute abandonment for over ing his absence he furnished appellant noth- one year, and there was an absolute neglect ing for the support of herself or children,

on the part of the husband to make suitable although able to do so; that, before leaving provision for his family. There was no exthem, he had incurred indebtedness to the

cuse shown for the abandonment, or for the extent of several hundred dollars, which he neglect to provide. On the contrary, it afneither discharged, nor made any provision | firmatively appeared that the respondent was to settle, but which was paid by appellant,

a man of health, strength, and capacity sufher daughter, and appellant's parents; that, ficient to enable him to well provide for his for a considerable time before the separation wife and family, and he was shown to have and ever since, the principal support of ap- received considerable sums of money during pellant and her family had been provided by this period. The established, undisputed herself, daughter, and parents. The court

facts bringing the case clearly and conclufound these facts substantially, and also sively within the letter of the statute, the found "from the testimony and her man

condition of appellant's feelings toward rener upon the witness stand," that the ap- spondent at the time of the trial, as adpellant made no attempt to solicit funds

verted to in the findings, constituted no legal from respondent for her support, and made

defense to her action. Kimble v. Kimble, 17 no objection to respondent's leaving, and had

Wash. 75, 49 Pac. 216. never requested him to furnish her with

The judgment of the honorable superior money, provisions, or support of any kind, or

court is reversed, and the cause remanded to reimburse her or her parents for the

with instructions to enter a judgment and money furnished for the payment of the debts

decree as prayed for in her complaint. which he accumulated and left, and that she had not requested him to return and

MOUNT, C. J., and DUNBAR, HADLEY, live with her or the family, or take her FULLERTON, and CROW, JJ., concur. to Idaho, where he had gone, to live with him there, and that she did not desire any support from him, and did not desire to

(45 Wash. 190) live with him as his wife or accept or re

HYNES V. PLASTINO et al. ceive support for herself and children, and

(Supreme Court of Washington. Dec. 29, 1906.) was indifferent concerning her attitude toward respondent, or his attitude toward


ABLE. her. We cannot see appellant's "manner up

Where there was no demurrer or motion on the witness stand," but a reading of her challenging the sufficiency of the answer at the trial, nor any objection to the introduction of from the government. The answer further evidence because the answer was insufficient, alleges that the answering defendants are an objection that it did not state facts sufficient to constitute a defense could not be re

Italians with a limited knowledge of the viewed on appeal.

English language, and a still more limited [Ed. Note. For cases in point, see Cent. Dig. knowledge of the public land laws of the vol. 2, Appeal and Error, $ 1241.]

United States; that they did not then know 2. BILLS AND NOTES-DEFENSE-FRAUD.

that the course of conduct suggested by said In an action on certain notes defendant al

Brokaw was unlawful. Detailed averments leged that his co-maker, the payee, indorser, and one B, conspired to defraud the United

are made as to the conspiracy scheme by States out of certain government lands; and, in which these defendants and their friends pursuance of such conspiracy the indorser rep- were to receive $1,000, exclusive of expensresented to defendant that he knew certain people who were desirous of obtaining timber lands

es for each claim located by them, to be paid belonging to the United States who would con- after final proof was made and title obtained. tract to purchase the lands from the locators It is further alleged that Shout was reprewhen title was obtained from the government; sented to be an experienced locator of timber, that defendants were Italians with a limited knowledge of the English language, and a stiil

and that the notes were made to him ostenmore limited knowledge of the public land laws

sibly to pay for locating claims; that his fee of the United States, and that they did not know was represented to be $100 per claim, and that the transaction suggested was unlawful,

that defendant Joseph Plastino paid a large and to further the same executed the notes to the payee for his services in locating the timber,

sum in cash as location fees, but had not but that in fact the money was divided among enough cash to pay $100 for each claim locatthe conspirators. Acid, that such facts consti- ed for himself and friends; that the contuted a defense to the notes.

spirators concealed from the defendant the Appeal from Superior

Superior Court, Spokane fact that all money so paid was by agreement County; W. A. IIuneke, Judge.

to be divided among the conspirators; that, Action by Richard Hynes against Joseph in pursuance of the solicitations of the conPlastino and others. From a judgment for


spirators, and upon their representation that defendants, plaintiff appeals. Affirmed. said Barrett, the co-maker would pay the

notes out of moneys to be paid by the conJohn A. Pierce and James Hopkins, for

spirators to this defendant when patent appellant. Tolman & Kimball, for respond- should issue, and relying thereon, the defendents.

ant was induced to execute the notes which

were wholly without consideration. Issue HADLEY, J. This is a suit to recover was joined by reply, and the cause came on upon two promissory notes of $300 and $500, for trial before a jury. A verdict was rerespectively, executed by the defendants Jo- turned in favor of the defendants Joseph seph Plastino and F. M. Barrett, payable to Plastino and wife, judgment was entered in the order of H. J. Shout, as payee. The com- their favor, and plaintiff has appealed. plaint alleges that the notes were indorsed It is urged that the court erred in holding by Shout and transferred to one Brokaw, that the answer states facts sufficient to conwho in turn indorsed and transferred them stitute a defense, and in admitting evidence to plaintiff for value, before maturity. The thereunder. No demurrer or motion challengdefendants Joseph Plastino and wife answer- ing the answer has been called to our attened the complaint, and denied that the notes tion, and we are shown no objection to the had been transferred for a valuable consider- introduction of evidence on the ground that ation, or for any consideration whatsoever, the answer is insufficient. The point is therebefore maturity. The answer also contains fore not reviewable here now. But in any an affirmative defense to the effect that Bar- event, we think the answer is sufficient, and rett, the co-maker, Shout, the payee, Brokaw, the testimony in support thereof was admisthe indorser, and one Bone, all conspired to- sible. There was sufficient evidence to supgether to defraud the United States govern- port a finding that the note was not indorsed ment of certain public lands, and also to for value before maturity, and that the apcheat and defraud the defendants; that, in pellant is not an innocent holder for value. pursuance of the conspiracy, said Brokaw ap- The affirmative defense is also sufficiently proached the defendant Joseph Plastino and supported by testimony to authorize the verrepresented to him that he, Brokaw, knew dict for respondents. The facts were for the certain people who were desirous of obtain- jury, and they have been settled by the ing timberlands belonging to the United verdict. States, situate in the state of Montana, and The judgment is affirmed. that said parties were willing to enter into a contract for the purchase of such lands from MOUNT, C. J., and ROOT, DUNBAR, the locators when title should be obtained FULLERTON, and CROW, JJ., concur.

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