1 Reported in 197 P.2d 590; 202 P.2d 461. Archie Brown, Aaron Johnson, and Willie Smith were jointly informed against for first-degree murder in one count and robbery in another. Defendants Brown and Johnson were convicted on both counts, and appeal.
At the beginning of the trial, and before the jury was impaneled, Willie Smith, being represented by counsel, changed his plea from not guilty to that of guilty on the first-degree murder count, and thereafter the robbery count was dismissed as to him.
The case which the state was prepared to offer, prior to the time Willie Smith changed his plea to the information *Page 478 and testified on behalf of the state, was almost entirely based upon circumstantial evidence.
A couple of days before the commission of the crime, Aaron Johnson had driven Archie Brown, Willie Smith, and Helen Minor from Portland to Pasco in his maroon-colored Packard sedan. Aaron Johnson and Helen Minor found quarters at Dixon's Trailer Camp, a little way out of Pasco, and Willie Smith stayed at the Parkside Trailers.
On the evening of Friday, September 28, 1945, very soon after dark, a man by the name of Bert Franklin Williams, who had been drinking beer in the Apex tavern in Pasco and had reached that condition where the tavern operator would serve him no more liquor, got into the maroon Packard sedan of Aaron Johnson and, in company with Archie Brown and Willie Smith, was taken, as he thought, to secure some whisky. Aaron Johnson drove the car, at least after they left the city, and, after driving a short distance, he turned off onto a little used one-track road and proceeded about a quarter of a mile, where, after going down a dip which hid them from the main road, he turned his car around and started back for a distance of thirty feet, when he stopped. Thereupon, Archie Brown dragged Williams out of the car, striking him so that he became unconscious, from which blows he died at some time between then and the following morning, when he was discovered, without, in all probability, according to medical testimony, ever regaining consciousness.
Willie Smith rifled his clothing and took his money. He was tossed onto the side of the road, after which they pushed the car (because its battery was down) until it started, and the three defendants returned to Pasco.
On the way back, the money taken from the deceased was divided among the three of them. Somewhere around a couple of hours later, a man by the name of Rigas, who had been drinking in the same Apex tavern, had fallen into a conversation with one Dorothy Day. She induced him to enter Aaron Johnson's maroon Packard sedan, and she, with the same three defendants, drove out to approximately *Page 479 the same spot where Williams had been killed, and there Rigas was taken out of the car, beaten, robbed, and left. The defendants and Dorothy Day returned to Pasco, dividing the money taken from Rigas among them on the way back.
Much of the record in this case is concerned with the identity of Williams, who was a stranger in Pasco. None of his relatives could be traced. His name was ascertained only by papers in his billfold, such as his social security card.
Some of the chief circumstances relied upon by the state were the marks of the four tires of the car that were made in turning around on the narrow road at the scene of the crime, which were photographed and compared with the tires on the defendant Johnson's car. A claim check on a check stand was found in the effects of Willie Smith and presented at the check stand. The parcel it covered was received. In the parcel was a comb having in or on it certain human hair, cloth fibers, and some squirrel hair. These were microscopically examined and compared with the hair of the deceased and certain cloth fibers of his clothing and certain hair in his pocket, by which comparison the state attempted to prove that the parcel, the claim check for which was taken from Willie Smith, had belonged to the deceased. Willie Smith's possession of the deceased's claim check was particularly important to the circumstantial evidence aspect of the state's case.
It was the position taken by Aaron Johnson that he was unaware of the purpose the other two had of committing a robbery until it was actually being done at the scene of the crime. He claimed to have been surprised. He denied receiving any share of the money, and, in the Rigas transaction occurring a couple of hours later, it was his position that he had expected to receive two dollars from Dorothy Day in return for taking Rigas and Dorothy Day to her residence for their mutual purpose, but that he had not received the two dollars and was not aware that a robbery was contemplated until it was being consummated. In the robbery case, Dorothy Day had pleaded guilty, and Aaron *Page 480 Johnson had been dismissed. A finding of lack of intent might well have been the basis upon which his dismissal rested.
It is apparent that there is no possible explanation available as a defense for Archie Brown and Willie Smith, who struck and robbed the deceased, but, as to Aaron Johnson, whose activity in the crime consisted of furnishing the car and driving it to the scene of the crime, but who did not lay hands on the deceased, the question of intent becomes the crux of the matter.
It is true that Willie Smith did give direct testimony upon the purpose of taking the deceased out in the car. This, however, the jury were privileged to disbelieve if they had elected to do so.
Evidence of the Rigas robbery was introduced by the state to show plan, intent, and design.
Objections were made to the admission of the testimony in regard to the Rigas robbery on the ground that it showed the commission of a distinct crime and constituted prejudicial error.
It is appellants' contention in assignment of error No. 13 that the second robbery was no part of the res gestae of the first offense; that they were separate and distinct offenses; and that the evidence regarding a subsequent crime was presented for no other purpose than to prejudice the jury, and was violative of appellants' Federal and state constitutional rights.
The evidence presents a clear-cut picture of a plan or a scheme employed, which, to that extent, forms a part of the resgestae, marking and identifying the actors, the acts, the means, the place, the time, the objectives, and the results. See 4 Nichols Applied Evidence 3425, § 3.
[1] The rule is that other crimes cannot be shown to establish the crime charged, excepting where they are closely connected with the crime charged and furnish evidence material to that crime. State v. McDonald, 116 Wash. 668, 200 P. 326;State v. Kaukos, 109 Wash. 20, 186 P. 269; State v. Sigler,116 Wash. 581, 200 P. 323. *Page 481
The general rule is succinctly stated in State v. Anderson,10 Wash. 2d 167, 116 P.2d 346, as follows:
"The general rule is, of course, that evidence of other crimes may not be introduced to establish the crime charged."
However, there are well-recognized exceptions to this general rule which likewise are found emphasized in State v. Anderson,supra, in this language:
"There are, however, several well-recognized exceptions to the rule. One such is where the crime charged is so connected and related to another crime as to give evidence of the latter probative value in proving the former." (Citing cases.)
[2] The application of the exception to the rule has been stated as follows:
"Evidence of other crimes may be admitted when it tends to establish a common scheme or plan embracing the commission of a series of crimes so related to each other that proof of one tends to prove the other, and to show the defendant's guilt of the crime charged. Subsequent as well as prior collateral offenses can be put in evidence, and from such system, identity orintent can often be shown. . . . The time of the collateral facts is immaterial, provided they are close enough together to indicate that they are a part of the system." (Italics ours.) 1 Wharton's Criminal Evidence (11th ed.) 527, § 352.
The following statement is made in 4 Nichols Applied Evidence 3424, § 2:
"Evidence tending to show the commission of another crime is admissible in a proper case, but the exceptions to the general rule `are carefully limited and guarded by the courts, and their number should not be increased.' Generally speaking, evidence of other crimes is competent to prove the specific crime charged when it tends to establish: . . . (2) intent; . . . (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other."
In State v. Davis, 6 Wash. 2d 696, 108 P.2d 641, a case of murder in the first degree, this court said: *Page 482
"In making its case, the state was entitled to introduce any evidence which was competent, relevant, and material to the issue to be determined by the jury. That a portion of the evidence so offered might incidentally tend to show that appellant had been guilty of some other and separate offense, is unimportant if the evidence tended to support the state's contention in the case being tried, and was admissible under the general rules of evidence."
The court, in that case, quoted with approval from State v.Gottfreedson, 24 Wash. 398, 64 P. 523:
"The general rule is well established that proof of the commission of a separate and distinct crime will not be admitted for the purpose of aiding the conviction of defendant for the crime charged. There are exceptions, however, to this general rule, as where the testimony shows a connection between the transaction under investigation and some other transaction, and where they are so interwoven that the omission of the testimony in relation to the other crime would detract something from the testimony which the state would have a right to introduce as tending to show the commission of the crime charged by the defendant, or where it is apparent that the parties had a common purpose in the transaction of both crimes, or where the testimony tending to show the commission of one crime tends to prove a condition of mind which must necessarily be entertained by the defendant in the commission of the crime charged."
[3] The commission of the Rigas offense was but a repetition of the Williams crime, committed by the same parties, employing the same means, operating in the same vicinity, on the same day within a couple of hours' time of it, to secure the same results, each step of which, when compared with the Williams murder, showed a single unified design and purposive scheme. The jury was entitled to take these facts into consideration, together with all of the other facts in the case, in determining the guilt or the innocence of the appellants. The Rigas robbery served circumstantially to disclose the modus operandi and the appellants' intent in the crime charged. See 6 Wigmore on Evidence (3d ed.) 240, § 1791. The admission of the evidence concerning the Rigas robbery falls under the exception to the rule and therefore was not error. *Page 483
The first assignment of error is that the court did not grant a motion for a change of venue made on the ground of racial prejudice. All of the affidavits in support of the motion, but one, asserted a prejudice against the colored race generally, rather than against the particular appellants, who were strangers in the community. The appellant Archie Brown made his affidavit in support of the motion for a change of venue upon the ground that the newspaper publicity had inflamed public opinion.
Rem. Rev. Stat., § 2018 [P.P.C. § 141-15], provides as follows:
"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 satified the ground upon which the application is made does exist."
[4] The statute does not contemplate such prejudice as a ground for a change of venue. There was no showing made of individual prejudice against any of the appellants such as is contemplated by the statute. The newspaper articles were factual in nature rather than inflammatory and such as are universally encountered in that type of news.
A motion for a change of venue is directed to the sound discretion of the court. It was not abused in this case. SeeState v. Straub, 16 Wash. 111, 47 P. 227; State v.Champoux, 33 Wash. 339, 74 P. 557; State v. Welty, 65 Wash. 244,118 P. 9; State v. Smith, 115 Wash. 405, 197 P. 770;State v. Lindberg, 125 Wash. 51, 215 P. 41; State v. Adams,144 Wash. 363, 258 P. 23; State v. Whidden, 144 Wash. 511,258 P. 318; State v. Schafer, 156 Wash. 240, 286 P. 833;State v. Schneider, 158 Wash. 504, 291 P. 1093, 72 A.L.R. 571; State v. Comer, 176 Wash. 257, 28 P.2d 1027; State v.Guthrie, 185 Wash. 464, 56 P.2d 160. *Page 484
The second assignment of error is:
"The trial court erred in allowing in evidence to impeach and incriminate the appellant Aaron Johnson statements elicited from him by continuous and threatening questioning for a period of eleven days before his request to see counsel was granted."
The examination in question was that of the state in cross-examination of the appellant Johnson, in which the state impeached his testimony by cross-examination as to his contrary voluntary statements made before the trial. Touching this assignment, the statement of facts shows the following questions and answers:
"MR. HORRIGAN: The Court asked the witness if any threats were made to the witness immediately before the statement was given, or while it was given, in the presence of myself, Florence Green, and the sheriff. THE COURT: Were they at that time, or not? A. No, I wouldn't say any threats were made. THE COURT: Do you say there were, or not? A. No."
[5] The appellant's previous statements have not been made to appear as made under threats or duress so as to be inadmissible for impeachment purposes. Appellant's citations upon the question of extorted confessions are therefore not in point.
[6] If the appellant Johnson was denied an opportunity to consult counsel for eleven days (and the record is far from conclusive as to that), it is not to the credit of the state and not to be commended. But, assuming it to be true, that happened previous to the trial, at which he was well represented. It happened likewise before any possible future new trial asked upon that ground. To allow it as a ground for a new trial, would make it impossible ever to bring the appellant to the bar of justice. Such a ruling would be tantamount to granting him permanent immunity. We find no merit in the second assignment of error.
[7] Appellants' third assignment of error is: "The trial court erred in repeatedly exhibiting prejudice against the appellants in the presence of the jury."
The matters urged in support of this assignment run mostly to rulings of the court made during the trial. It *Page 485 is a catch-all assignment referring to other assignments. We quote from appellants' brief on this assignment:
"Appellants can find very few instances in the record where their objections were sustained. They were almost continuously overruled although made conscientiously and in accordance with the rules of evidence as counsel understood them."
We find no support for this assignment in the record.
Assignment No. 4 is: "The court erred in questioning the witnesses and directing the trial in a manner to assist the prosecution."
The appellants assert under this assignment of error that the following things were said or done: that Richard C. Rector had testified without being sworn; that he was recalled by the court, and the court attempted to cure the error by questioning the witness himself, summarizing his testimony in a few words, and readmitting his identifications in evidence over objections of counsel for appellants; that the court questioned the witness Haylett as to the facts showing venue; that the court asked a pertinent question which the prosecution had omitted in attempting to qualify a witness as an expert as follows: "Is it inherent in the business of a mortician to know periods that a corpse has been dead?"; that the court assisted the prosecution with the identification of the car driven to the death scene over the objections of defense counsel Beardsley; that the court asked the questions of the recalled prosecution witness Harter, to which appellants excepted; that counsel for appellant Johnson objected to an interruption of a witness by the court by prompting the witness in calling attention to statements he had made, as being improper conduct on the part of the court.
Appellants rely on State v. Crotts, 22 Wash. 245,60 P. 403, and State v. De Pasquale, 39 Wash. 260, 81 P. 689, in which questioning of witnesses by the trial court in a manner unfavorable to the defense resulted in reversals by this court. *Page 486
We quote from State v. De Pasquale, supra:
"There can be no doubt that the court, by such questions as the following: `You went out there with a pistol expecting to meet him and have a shooting scrape with him?' `Did you say anything to him about going to shoot?' `If you had stayed inside, wouldn't you have been safe?' `When he went outside, if you had stayed inside, wouldn't you have been safe?' — clearly conveyed the idea to the jury that the appellant was at least guilty of manslaughter, and that the plea of self-defense was not bonafide, in the opinion of the court."
The De Pasquale case is an example of questioning by the court which amounted to a comment on the evidence in contravention of Art. IV, § 16, of the constitution of the state of Washington, which reads as follows:
"Judges shall not charge juries with respect to matters of fact, nor comment thereon, but shall declare the law."
[8] But not all questioning by the court reveals an opinion of the court. As was said in Dennis v. McArthur, 23 Wash. 2d 33, 158 P.2d 644:
"That the court has wide discretionary powers in the trial of a cause and is not prohibited from questioning a witness, is beyond controversy. Such a course may constitute a comment on the evidence where it is improperly done. To constitute a comment on the evidence, however, it must appear that the attitude of the court toward the merits of the cause must be reasonably inferable from the nature or manner of the questions asked and things said."
We find no instance in the record where the opinion of the court as to the merits of the case could be inferred from any question asked. The questioning by the court was not error.
[9] As to the Richard C. Rector incident, so far as we can determine from the record, the omission to swear him before he first gave testimony was an inadvertence. No objection was made to it. His testimony was limited to the matter of his preparation of certain maps of the scene of the crime later offered in evidence and his qualifications to make them. Then the following occurred: *Page 487
"THE COURT: Call Mr. Rector again. The court did not swear him as a witness. Richard C. Rector was thereupon sworn to testify the truth, the whole truth and nothing but the truth, and testified as follows: BY THE COURT: Q. Do you now, Mr. Rector, repeat all the testimony that you gave in the first instance as to your qualifications, and as to your drawing these maps? A. Yes, sir. Q. Was your testimony all true that you gave? A. Yes, your Honor. Q. And you now repeat it? A. Yes, sir. Q. Treat it as repeated, rather? A. Yes, sir."
No objection or motion of any kind was made as to this by appellants. There is now nothing in the record that is not sworn to.
The inadvertence was cured without objection and does not constitute reversible error.
The fifth assignment of error is: "The court erred in repeating, emphasizing and commenting upon the evidence."
We quote the gist of appellants' contention: "Also, this clarified the testimony, which was the duty of the prosecution, not the court."
[10] Without setting out the things said by the court, to which generally no objections were made, it may be said that they consisted in giving reasons for his rulings, which is permissible (see State v. Surry, 23 Wash. 655, 63 P. 557; State v.Brown, 19 Wash. 2d 195, 142 P.2d 257), or in asking clarifying questions, which is also within the sound discretion of the court.
Appellants' sixth assignment of error is: "The court erred in allowing the jury to examine identifications not yet introduced in evidence." The record shows they were subsequently admitted, thereby curing any possible error.
Appellants' seventh assignment of error is: "The court erred in allowing in evidence as exhibits articles not properly identified." This assignment is without merit. The record discloses an adequate identification.
Appellants' eighth assignment of error is: "The court erred in allowing the jury to examine a car and tires not introduced in evidence." This assignment will be disposed of under the ruling on assignment No. 12. *Page 488 [11] Appellants' ninth assignment of error is: "The court erred in allowing witnesses to identify exhibits and testify without being sworn."
Mr. McCall was brought into the courtroom while another witness was on the stand, for the purpose of watching while certain packages containing exhibits were opened. Counsel for the defense consented to this. The court said: "You have seen them before, have you?" Mr. McCall said: "Yes, sir. . . . This is K-3, K-4, K-5," etc. Later he took the witness stand and under oath testified about each of the exhibits, thereby curing any previous defect. This assignment of error is without merit.
[12] The appellants' tenth assignment of error is: "The court erred in disregarding the rule of exclusion of witnesses."
Appellants complain that the court ignored the exclusion rule in allowing Deputy Sheriff Harvey Huston, the only prisoners' guard available at the time, to testify.
The record reveals that Mr. Huston was called to testify to the identity of the baggage check which had previously been testified to by another witness, Mr. Harter, while Mr. Huston was outside of the courtroom. Under those circumstances, Mr. Huston was allowed to testify, being limited to the identification of the baggage check. The matter of exclusion of witnesses during a trial is within the discretion of the trial judge. State v.Colotis, 151 Wash. 557, 276 P. 857; Castleman v. Schiffner,160 Wash. 313, 294 P. 983. The ruling of the trial judge in permitting the officer to testify was not error.
Appellants' eleventh assignment of error is: "The court erred in allowing opinion evidence from two persons not qualified as expert witnesses."
These witnesses were C. Erwin Piper, a special agent of the F.B.I., and Donald F. McCall, an instructor at Washington State College. The record shows them to be amply qualified experts as to the matters about which they testified. The trial court did not abuse its discretion in so holding. *Page 489
The appellants' twelfth assignment of error is: "The court erred in conducting part of the trial out of the court room and out of the presence of the appellants."
The latter part of this assignment is not borne out by the record. The appellants were present with their counsel and the entire trial court at all times. The court did adjourn to the courtyard, where appellant Johnson's maroon Packard sedan had been brought under direction of the court. There, in the presence of all, certain examination of witnesses was made in view of the car. Appellants make three points under this assignment of error: (1) that the court had no authority to adjourn to the courtyard and hear testimony there; (2) that the jury considered personal property not offered or received as exhibits, and (3) that the jury and the defendants became separated.
[13] As to the first point, it was said in State v. LeeDoon, 7 Wash. 308, 34 P. 1103:
"The trial can be but in one place at a time, and that place is where the judge presides and the evidence is produced."
We think a properly constituted court, where all proper and necessary persons are in attendance, may be conducted at such places as convenience dictates. Nor do we think the place need be any particular structure, building, or room. The court, as such, is where the judge presides, and, within reason, the court has discretion in determining the place. In this instance, the automobile could not be brought into the courtroom. As a matter of convenience, the court in its entirety adjourned to the courtyard, where the car was. We find no error in this.
In passing, it may be noted that this situation is not within the purview of Rem. Rev. Stat., § 344 [P.P.C. § 99-43], which provides for the viewing of premises by the jury, at which time no one may speak to them other than the judge. The citations touching Rem. Rev. Stat., § 344, are not in point.
[14] As to the second point, it is true that the car was not and could not be admitted as an exhibit. Photographs were admitted, and the fairness of their representations is not questioned. Competent evidence with regard to an object is *Page 490 not inadmissible or subject to be stricken solely on the ground that the object itself is not admitted in evidence.
As to the third point, the record does not bear out the assertion that the jury and the appellants became separated.
We find no error under assignment No. 12.
Appellants' thirteenth assignment of error was directed to the admission of evidence of a subsequent crime which has been heretofore treated in this opinion.
Appellants' fourteenth assignment of error is: "The court erred in helping the prosecution frame questions which were leading and put words in a witness' mouth."
During the absence of the jury, the prosecutor and the court went into the matter of what questions could be asked of a certain witness. The court indicated what questions he would permit, and, after the jury was recalled, these questions were asked and answered. The objections to the questions asked in the presence of the jury have been treated under assignment No. 13. We find no error in this occurrence.
Appellants' assignment No. 15 is: "The court erred in not granting a new trial to the appellants for the errors cited above."
Not having found any error in the assignments, the judgment is affirmed.
STEINERT, JEFFERS, and SCHWELLENBACH, JJ., concur.