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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. 441, 78 Pac. 1001 are cited to sustain this contention. 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 offense is alleged to have been committed. But it will be noticed in this case that there is

no discussion of the guilt or innocence of the parties charged. In fact, the record shows that the juror testified unequivocally that he never had heard of the case, and that he had no impression or opinion as to the guilt or innocence of the defendants. The trouble is that the learned counsel for the defendants, instead of examining the juror in relation to his knowledge of this case and his bias or prejudice in regard to the guilt or innocence of the defendants, entered into a discussion with him on abstract principles of law, which it is evident from the whole colloquy the juror did not understand. Now, in answer to the first query the juror said: "Well, not knowing anything of the case, I could not say." It would be hard to conceive of a more natural and correct answer to such a question. A person not knowing anything about the case could not possibly consider the defendant guiltlesshe would simply not have any opinion on the subject. The old common-law illustration was that a juror's mind on the subject of guilt or innocence should be like a blank sheet of paper, ready to receive impressions from the testimony presented. The juror evidently failed to understand and comprehend the difference between a legal assumption of innocence and the fact that he believed the defendants to be innocent beyond a reasonable doubt, and, as soon as he understood from the instructions given him by the court that he was to act upon the legal assumption that the defendant was innocent until he was proven guilty, he properly expressed his capability to so act. The juror indicated that the fact that the prosecuting attorney had informed against the defendants led him to presume that there was some evidence of their guilt. This practically is not a violent assumption on the part of a juror or any other citizen, and is one which is naturally indulged in by a person who presumes that the officers of the law do their duty. It does not necessarily go to the extent of an opinion that the officer has accumulated sufficient evidence to prove the defendant guilty, or to overcome the presumption of innocence. But it certainly ought not to disqualify a citizen to act as a juror, to believe that an information would not be filed unless there was some evidence to sustain it. And such a belief in no way interferes with the impartial condition of mind with which he ought to approach the position of a juror under the law. When it appears that the juror knows nothing of the circumstances of the case, and is in no way prejudiced for or against the defendant, nor against the crime, which is the subject of the investigation, and has avowed his willingness to accept the law as given by the court, he may be safely left to the instructions of the court concerning the general principles of law applicable to the case.

It not appearing that the challenge was wrongfully denied by the court, and there

being no other error assigned, the judgment is affirmed.

MOUNT, C. J., and FULLERTON and RUDKIN, JJ., concur. ROOT, CROW, and HADLEY, JJ., dissent.

(45 Wash. 154)

JOHNSTONE v. SEATTLE, R. & S. RY. CO. (Supreme Court of Washington. Dec. 22, 1906.) 1. CARRIERS-INJURIES TO PASSENGERS-EVI

DENCE.

In an action for injuries to a passenger caused by a collision of defendant's street railway cars, the speed at which the cars collided and the injury to them was material to show the force of the collision, and the force of the collision was material to show the probabilities as to whether plaintiff was injured, and the nature and extent of the injury.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 9, Carriers, § 1302.]

2. TRIAL-INSTRUCTIONS-LANGUAGE.

An instruction that the "preponderance" of evidence means the "best" evidence was not inappropriate nor objectionable as tending to mislead the jury, the term "best evidence" obviously not having been used in the technical

sense.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 46, Trial, §§ 549, 550.]

3. NEW TRIAL GROUNDS - MISCONDUCT OF PARTIES-PREJUDICIAL PLEADING.

Though it is reprehensible to plead allegations tending to prejudice the jury, with no intention of attempting to prove them, before a new trial should be granted upon that ground alone, the abuse should be flagrant, and its prejudicial effects plainly evident, or exceedingly probable.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 37. New Trial, § 24.]

Appeal from Superior Court, King County; George E. Morris, Judge.

Action by Grace T. Johnstone against the Seattle, Renton & Southern Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Sachs & Hale, for appellant. Rossman & Johnson, for respondent.

ROOT, J. This is an appeal from a judgment for $3.500, for damages sustained in a personal injury case. Respondent was a passenger on appellant's street railway car, when the latter collided with another of appellant's cars. The answer admitted the collision, but denied the extent of the injuries sustained by respondent. The trial court, among others, gave the following instruction: "The speed at which these cars collided and the injuries to the car are material only so far as they may serve to establish the force of the collision, and the force of the collision is material only in so far as it may serve to establish the probabilities as to whether or not the plaintiff was injured, and the nature, kind, character, and extent of that injury." Appellant argues that from this instruction the jury had a right to presume that plaintiff was injured as testified by her, and that in determining

that the language of the trial court was calculated to, or did, mislead the jury, or that it was inappropriate for the explanation and direction which the court was endeavor

the character and extent of her injuries they should be influenced by the evidence as to the force of the collision, and the damage occasioned to the cars thereby, and that this would be improper. We do not thinking to give. the instruction was erroneous. The main issue was as to the extent of respondent's injuries. While the force of the collision and its effect upon the cars would not be conclusive, or exclusively controlling, considerations in determining the character or extent of respondent's injuries, yet these facts and circumstances, we think, were well calculated to aid the jury in properly weighing and understanding the evidence given as to the character and extent of said injuries, and the particular manner in which they were occasioned. We think there was noth-jury, is a reprehensible practice, and in flaging in said instruction calculated to mislead the jury, or prejudice appellant's rights.

The trial court also gave the following instruction to which exception was taken by appellant: "By this term 'preponderance of the evidence' as I have used it in these instructions, is meant the best evidence; that which appeals to your intelligence as Jurors, and as men versed in the ordinary affairs of life, as being the most probable happeningbeing the most probable event. Now, the evidence which satisfies your mind upon that score is always the best evidence-is always the evidence that is entitled to your consideration, and that is what the law means when it uses this expression 'preponderance of evidence.' It means evidence of that character; evidence which appeals to your judgment and to your intelligence as establishing certain facts; and in determining that, you should look to the witnesses; who they are, and what they are; their interest in the case; their means of knowing the facts concerning which they testify; their manner of testifying-all these things should be taken into consideration by you in determining where the preponderance of evidence is." Appellant urges that the court herein told the jury that the "preponderance of the evidence" was the "best" evidence, and that the jury might naturally have concluded that the party injured could give the best evidence as to whether or not she was injured, and as to the extent and nature thereof, and that they might be controlled by that, even though the preponderance or weight of the evidence was the other way. We do not think this position tenable.

is evident that the trial judge did not use the expression "best" evidence in its technical sense, but used the term for the purpose of explaining to the jury, in a plain and practical manner, what was intended by the expression "preponderance of the evidence." While the distinction between technical legal terms is readily observed by those experienced and familiar with such matters, it is nevertheless frequently imperceptible to the lay mind, which is wont to give such terms their ordinary meaning. We do not believe

It is next urged by appellant that the complaint contained a large number of allegations which it was evident there was no intention of proving or attempting to prove, and as to which there was no evidence offered, and that their presence was calculated to prejudice the jury against appellant. The placing in pleadings of numerous allegations which the pleader has no intention or expectation of proving or attempting to prove, when such allegations are of a character calculated to prejudice or unduly affect the

rant cases may justify the trial court in withholding the complaint or those portions of the complaint from the jury, or possibly in granting a new trial, if it is reasonably probable that the presence of these extrinsic, and inflammatory matters was due to bad faith, and they were such as may probably have unduly influenced the jury to the substantial detriment of the opposing party. But before a new trial could be granted upon this ground alone, the abuse mentioned should be a flagrant one, and its prejudicial effects upon the jury plainly evident or exceedingly probable. We do not think that this is a case of that kind.

Lastly, it is urged that the verdict herein was excessive, and that the trial court should have reduced the amount. There is a conflict in the evidence as to some of the circumstances immediately attending the injury to respondent, as well as to the injuries apparent at that time, and a wide divergence in the opinion of the medical experts who testified in the case. There is an abundance of evidence which, if believed, would justify the amount awarded by the jury.

Finding no prejudicial error in the record, the judgment of the superior court is affirmed.

MOUNT, C. J., and CROW, DUNBAR, HADLEY, and FULLERTON, JJ., concur.

(45 Wash. 184)

SWAIN v. SWAIN.
(Supreme Court of Washington. Dec. 29, 1906.)
DIVORCE-ABANDONMENT-FAILURE TO PRO-
VIDE CONDUCT OF PLAINTIFF.

Where a statute provided that divorce might be granted by the superior court on application of the party injured for abandoninent for one year, or for neglect and refusal of the husband to make suitable provision for his family, and plaintiff proved that defendant abandoned her and their children while they were asleep, left them to support themselves, or become the objects of the charity of friends, and pay debts which defendant made and left unsettled, though he was able to care for his family, plaintiff was entitled to a divorce as a matter of law, though she appeared indifferent

on the witness stand to his again living with or maintaining her.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 17, Divorce, §§ 107-138, 446, 447.]

Appeal from Superior Court, Spokane County; W. A. Huneke, Judge.

Action by Hattie E. Swain against Ed. S. Swain. From a judgment of dismissal, plaintiff appeals. Reversed.

Barnes & Latimer, for appellant. A. J. Langhon, for respondent.

ROOT, J. This was an action instituted by plaintiff to obtain a decree of divorce from the defendant upon the ground that the latter had failed and neglected to provide her and their minor children with suitable support. Personal service of summons and complaint was had in Spokane county upon the defendant, who defaulted. Thereupon the prosecuting attorney appeared for the state, and resisted the action. From a judgment of dismissal this appeal is

taken.

The evidence showed that for some months prior to leaving appellant the respondent had failed to support her or the children; that one morning, before they were up, he had departed from his home, and had remained continuously absent ever since, a period of over one year, excepting on two occasions when he called at the house, remaining but a few minutes each time. During his absence he furnished appellant nothing for the support of herself or children, although able to do so; that, before leaving them, he had incurred indebtedness to the extent of several hundred dollars, which he neither discharged, nor made any provision to settle, but which was paid by appellant, her daughter, and appellant's parents; that, for a considerable time before the separation and ever since, the principal support of appellant and her family had been provided by herself, daughter, and parents. The court found these facts substantially, and also found "from the testimony and her manner upon the witness stand," that the appellant made no attempt to solicit funds from respondent for her support, and made no objection to respondent's leaving, and had never requested him to furnish her with money, provisions, or support of any kind, or to reimburse her or her parents for the money furnished for the payment of the debts which he accumulated and left, and that she had not requested him to return and live with her or the family, or take her 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 live with him as his wife or accept or receive support for herself and children, and was indifferent concerning her attitude toward respondent, or his attitude toward her. We cannot see appellant's "manner upon the witness stand," but a reading of her

testimony convinces us of no indifference other than might naturally be expected as a result of the humiliation and neglect to which she had been subjected. It does not appear that appellant knew of respondent's intention to leave her and the family, and her counsel pertinently suggest that her failure to object to his leaving at the time is not extraordinary in view of the fact that she did not know he was going, and that he left while she and her family were asleep. The fact that this woman, who with her family had been abandoned and left to support themselves, or to be the objects of the charity of friends, and to pay the debts which her husband had made and left unsettled, appeared upon the witness stand indifferent to his again living with or maintaining her can hardly be characterized as an unusual occurrence under the circumstances. While this court does not believe in being liberal in the granting of divorces, yet we think that this appellant, by the uncontradicted evidence produced, brought her case so completely within the terms of the statute that there was left no room for judicial discretion. The statute says: vorces may be granted by the superior court on application of the party injured, for the following causes: (4) Abandonment for one year. (6) The neglect or refusal of the husband to make suitable provision for his family." In this case there was an absolute abandonment for over one year, and there was an absolute neglect on the part of the husband to make suitable provision for his family. There was no excuse shown for the abandonment, or for the neglect to provide. neglect to provide. On the contrary, it affirmatively appeared that the respondent was a man of health, strength, and capacity sufficient to enable him to well provide for his wife and family, and he was shown to have received considerable sums of money during this period. The established, undisputed facts bringing the case clearly and conclusively within the letter of the statute, the condition of appellant's feelings toward respondent at the time of the trial, as adverted to in the findings, constituted no legal defense to her action. Kimble v. Kimble, 17 Wash. 75, 49 Pac. 216.

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trial, nor any objection to the introduction of evidence because the answer was insufficient, an objection that it did not state facts sufficient to constitute a defense could not be reviewed on appeal.

from the government. The answer further alleges that the answering defendants are Italians with a limited knowledge of the 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.]

2. BILLS AND NOTES-DEFENSE-FRAUD.

In an action on certain notes defendant alleged that his co-maker, the payee, indorser. and one B, conspired to defraud the United States out of certain government lands; and, in pursuance of such conspiracy the indorser represented to defendant that he knew certain people who were desirous of obtaining timber lands belonging to the United States who would contract to purchase the lands from the locators when title was obtained from the government; that defendants were Italians with a limited knowledge of the English language, and a still more limited knowledge of the public land laws of the United States, and that they did not know that the transaction suggested was unlawful. and to further the same executed the notes to the payee for his services in locating the timber, but that in fact the money was divided among the conspirators. Held, that such facts constituted a defense to the notes.

Appeal from Superior Court, Spokane Spokane County; W. A. Huneke, Judge.

Action by Richard Hynes against Joseph Plastino and others. From a judgment for defendants, plaintiff appeals. Affirmed.

John A. Pierce and James Hopkins, for appellant. Tolman & Kimball, for respondents.

HADLEY, J. This is a suit to recover upon two promissory notes of $300 and $500, respectively, executed by the defendants Joseph Plastino and F. M. Barrett, payable to the order of H. J. Shout, as payee. The complaint alleges that the notes were indorsed by Shout and transferred to one Brokaw, who in turn indorsed and transferred them to plaintiff for value, before maturity. The defendants Joseph Plastino and wife answered the complaint, and denied that the notes had been transferred for a valuable consideration, or for any consideration whatsoever, before maturity. The answer also contains an affirmative defense to the effect that Barrett, the co-maker, Shout, the payee, Brokaw, the indorser, and one Bone, all conspired together to defraud the United States government of certain public lands, and also to cheat and defraud the defendants; that, in pursuance of the conspiracy, said Brokaw approached the defendant Joseph Plastino and represented to him that he, Brokaw, knew certain people who were desirous of obtaining timber lands belonging to the United States, situate in the state of Montana, and that said parties were willing to enter into a contract for the purchase of such lands from the locators when title should be obtained

United States; that they did not then know that the course of conduct suggested by said Brokaw was unlawful. Detailed averments are made as to the conspiracy scheme by which these defendants and their friends were to receive $1,000, exclusive of expenses for each claim located by them, to be paid after final proof was made and title obtained. It is further alleged that Shout was represented to be an experienced locator of timber, and that the notes were made to him ostensibly to pay for locating claims; that his fee was represented to be $100 per claim, and that defendant Joseph Plastino paid a large sum in cash as location fees, but had not enough cash to pay $100 for each claim located for himself and friends: that the conspirators concealed from the defendant the fact that all money so paid was by agreement to be divided among the conspirators; that, in pursuance of the solicitations of the conspirators, and upon their representation that said Barrett, the co-maker would pay the notes out of moneys to be paid by the conspirators to this defendant when patent should issue, and relying thereon, the defendant was induced to execute the notes which were wholly without consideration. Issue was joined by reply, and the cause came on for trial before a jury. A verdict was returned in favor of the defendants Joseph Plastino and wife, judgment was entered in their favor, and plaintiff has appealed.

It is urged that the court erred in holding that the answer states facts sufficient to constitute a defense, and in admitting evidence thereunder. No demurrer or motion challenging the answer has been called to our attention, and we are shown no objection to the introduction of evidence on the ground that the answer is insufficient. The point is therefore not reviewable here now. But in any event, we think the answer is sufficient, and the testimony in support thereof was admissible. There was sufficient evidence to support a finding that the note was not indorsed for value before maturity, and that the appellant is not an innocent holder for value. The affirmative defense is also sufficiently supported by testimony to authorize the verdict for respondents. The facts were for the jury, and they have been settled by the verdict.

The judgment is affirmed.

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