State v. Clark , 156 Wash. 47 ( 1930 )

I can concur in the conclusions reached by the majority upon all the issues involved in this appeal, were I convinced that the denial of a separate trial for this appellant was without prejudicial error and that he could have a fair trial when jointly tried with his codefendant, Bessie M. Bidwell.

To my mind the record amply discloses that he could not have a fair and impartial trial when jointly tried with her. It seems to me that the results reached by the jury so prove. Although he and his codefendant had been guilty of libidinous conduct together for some time, she was much the more intelligent of the two and had more initiative than he. Yet she was acquitted of murder in the first degree and found guilty only of murder in the second degree by the same jury. State v. Bidwell, 150 Wash. 656,274 P. 716.

Throughout the trial the interests of the two defendants grew more and more antagonistic. While the trial judge was very alert and ably discriminative in separating the evidence that was admissible as against his and that which was admissible only against his codefendant, and advising the jury accordingly, such conflicts recurred frequently and could only result in the greatest confusion in the minds of the jury. Jurors would naturally be more antipathetic toward the male defendant, who was proven to be the paramour of the woman, than toward her.

There could have been no legal objection to the granting of separate trials, other than that of economy in time and money in the trial.

To my mind the evidence fully discloses that the three grounds upon which the motion for separate trial was made by appellant were well founded and more and more strongly manifested throughout the trial.

We have often concluded that the trial court abused its judicial discretion in denying rights to a party which were disclosed to be well founded by the record. While I do not hesitate to say that the trial judge conducted the trial most ably, in my opinion he erred in refusing separate trials, that this appellant suffered greatly from that denial, and should have a new trial.

I therefore dissent from the conclusion of the majority upon that one question.