(dissenting) — In State v. Johnson, ante p. 21, 371 P. (2d) 611 (1962), this court decided, as a matter of law, that the words “parole officer,” used by a state’s witness, did not deny the accused a fair trial.
In the instant case, the majority of this court conclude, as a matter of law, that the use of the same words, “parole officer,” denied the defendants a fair trial. The only distinction between the two cases is that, in the Johnson case, the appeal was from the court’s refusal to grant a new trial, while the instant appeal is from a judgment granting it.
The gravamen of the majority opinion is that, when the trial court exercises its judicial discretion in the granting of a new trial, this court will never substitute its judgment for that of the trial court, in the absence of a finding of abuse of discretion. The stated law, however, is not apropos when the trial court grants a new trial, based upon an erroneous application of the law. Such a review presents solely a question of law, and does not involve judicial discretion.
In State v. Costello, 59 Wn. (2d) 325, 367 P. (2d) 816 (1962), the jury returned a verdict finding the defendant guilty of negligent homicide. The trial court granted a motion in arrest of judgment or, in the alternative, a new trial. From the judgment entered accordingly, the state appealed. This court reversed the judgment, and ordered judgment and sentence entered upon the verdict of the jury for the reason that the trial court, in granting the new trial, had erroneously applied the law.
In the instant case, we are not concerned with the trial court’s exercise of judicial discretion in granting a new trial, but, rather, with whether it properly applied the law. When the trial court has erred in applying the law, this court is required, in its review, to substitute its judgment for that of the trial court.
Did the trial court err when it held, as a matter of law, that the defendants were denied a fair trial?
In State v. Johnson, supra, we stated:
“The test is this: Did the inadvertent remark, which the jury was instructed to disregard, when viewed against the *44backdrop of all the evidence, so taint the entire proceedings that the accused did not have a fair trial?”
The test involves consideration of four essential elements: (1) A questioned remark, which presupposes a technical error, (2) the court’s duty to instruct the jury to disregard it, (3) the evidence of guilt, and (4) whether the questioned remark tainted the entire proceedings.
The trial court, in utter disregard of elements 2, 3, and 4, held that the technical error (element 1) alone denied the defendants a fair trial. Elements 2, 3, and 4 are essential to a judicial determination of whether the defendants were afforded a fair trial.
In regard to element 2, the trial court did not believe that the remark, at the time it was made, was prejudicial or that the so-called “atmosphere of the courtroom” was in any manner affected by it. The trial court nevertheless offered to instruct the jury to disregard the remark. The necessity for an instruction was waived when the defendants specifically requested that it not be given. State v. Cunningham, 51 Wn. (2d) 502, 319 P. (2d) 847 (1958).
The third element involves consideration by the court of the backdrop of the evidence and the trial, including waiver of the alleged error by subsequent conduct of the defendants. In the instant case, both defendants voluntarily offered themselves as witnesses, and, in so doing, their previous felony convictions became admissible in evidence. When the defendants became witnesses in their own behalf, the previous inadvertent remark relative to Taylor’s parole officer lost its prejudicial effect, if any, in the light of the admitted felony convictions. In this connection, the court instructed the jury as follows:
Instruction No. 12: “The law makes the defendant a competent witness in his own behalf and you have no right to disregard the testimony of the defendant upon the ground alone that he is the defendant and stands charged with the commission of a crime. The defendant is a competent witness and has the right to testify in his own behalf, and when he does so testify he becomes the same as any other witness and his testimony is to be tested by *45and subjected to the same tests, and only the same tests, as are applied to other witnesses.”
Instruction No. 13: “Under the law of this state, the fact that a defendant has previously been convicted of a crime is not of itself any evidence of his guilt in this case. It is, however, a circumstance which may be weighed and considered by you in the determination of what weight or credibility should be allowed his testimony as a witness in this case.”
Instruction No. 15: “In this case, you must decide separately the question of the innocence or guilt of each of the two defendants as to each of the two counts charged in the Amended Information. If you cannot agree upon the innocence or guilt of both the defendants as to any one count, but agree as to the innocence or guilt of one of them as to that count, you must render a verdict as to the one upon whose innocence or guilt you do agree.”
The instructions limited the consideration which the jury should give to evidence tending to establish previous conviction of crime.
In granting a new trial, the trial court gave no consideration to the backdrop of the evidence which established that, while Taylor and Gilcrease were serving a jail sentence for another offense, they were separately interrogated by police officers concerning the two drive-in theater burglaries. Each separately signed a written confession detailing the precise time when and manner in which the burglaries were accomplished, the tools they used, the items of property taken, and where the stolen items could be found. The officers thereafter went to the designated place and recovered the remaining stolen items.
Taylor admitted that he signed the confession, but said that the statements therein contained were false and that he signed because he was promised leniency. Gilcrease offered no explanation for signing his confession, but corroborated Taylor relative to the alibi.
The evidence which established the backdrop of guilt, and which was as conclusive as though the defendants had been caught actually burglarizing the theaters, was given no consideration whatsoever by the trial court in granting a new trial.
*46As to the fourth element, did the mention of a parole officer “so taint the entire proceedings” that it can be said, as a matter of law, that the defendants were denied a fair trial?
The confessions of guilt and the recovery of the stolen items, some of them on the person of one of the defendants, together with their voluntary admissions of previous felony convictions, so discredited their alibi that the remark that one of them was a subject of parole neither added to nor detracted from their guilt.
In my opinion, the trial court erred in disregarding elements 2, 3, and 4 of the test, setting aside the verdict of the jury, and granting each of the defendants a new trial.
The majority opinion likewise disregards the third element of the test because “no question arises as to the sufficiency of the proofs to sustain the verdict of guilty, [and] it is unnecessary to narrate the evidence.” To disregard the backdrop of all the evidence and ignore the waiver, during the trial, of the alleged technical error, emasculates the rule by eliminating the third element.
The majority refer to the questioned remark as an “evidential harpoon.” In my opinion, the “evidential harpoon” that convicted the defendants was not the inadvertent remark of a witness, but the overwhelming backdrop of guilt which I have portrayed above in detail, and which the majority refuse to consider.
The majority say that “The injection of the existence of Taylor’s parole officer was deliberate” on the part of the witness. This finding of fact by the majority, in an appellate review, is totally unsupported by the record. There is an affirmative finding by the trial court that the statement of the witness was unresponsive.
Finally, the majority assert that, because of the remark regarding “parole officer,” the defendant Taylor was required to take the stand. The same contention for a similar remark was raised and rejected in State v. Duree, 52 Wn. (2d) 324, 324 P. (2d) 1074 (1958). In that case, we said [p. 327]:
*47“. . . we cannot reasonably conclude that the appellant took the witness stand merely because oí the witness’ reference to a ‘mugg shot’ picture when, in doing so, he knew he would be compelled to reveal his previous criminal convictions. We are convinced that, when the appellant took the stand, he did so for the purpose of denying his guilt and not because of the inadvertent statement of the police officer. Under the circumstances of this case, the reference to the picture did not constitute reversible error.”
In the instant case, both of the defendants took the stand for the sole purpose of giving some explanation for their detailed confessions and to corroborate each other relative to their alleged alibi. Having taken the stand as witnesses, the prejudicial error, if any, was waived by their voluntary admission of their previous felony convictions.
Applying all of the elements of the test announced in the Johnson case, supra, to the trial of the defendants in the instant proceeding, they were, in my opinion, afforded a fair trial.
The judgment granting the defendants a new trial should be reversed, and the cause remanded with instructions to enter judgments and sentences upon the verdict of the jury.