State v. Much , 156 Wash. 403 ( 1930 )

I dissent from those portions of the majority opinion relating to the instruction on the subject of view of the premises by the jury, and the trip of the jury into the state of Idaho. A view of the premises with respect to the trial of cases is provided for and regulated by Rem. Comp. Stat., § 344, which is essentially the same, for present purposes, as the statutes upon that subject in most of the other states. The application of the statute in felony cases has caused a large number of decisions in the different states from the viewpoint of the defendant's right to be present when the view is made. Many of the cases have been collected in note 1, page 667, vol. I, Cooley's Constitutional Limitations, eighth edition, and in subdivision "e" of the note to People v. Thorn, 156 N.Y. 286, 50 N.E. 947, 42 L.R.A. 368. There appears to be considerable conflict of opinion on the subject which, as we understand the cases, arises from a consideration of the purpose and scope of the view by the jury — that is, whether the view is only for the purpose of enabling the jury to understand the relative weight of conflicting testimony, or whether the view shall have the force of substantive evidence.

In the case of State v. Lee Doon, 7 Wash. 308, 34 P. 1103, relied on by the majority opinion here, the instruction, if any, given to the jury either at the time it made the view or finally is not set out. This court simply discussed generally the right of a defendant to be present during the view, and, upon saying that such view was not a part of the trial, and that,

"The jury does not view the premises for the purpose of obtaining evidence, . . . they simply view the premises for the purpose of enabling them to make an intelligent application of the testimony presented at the trial,"

held that there was no error in permitting the view in the absence of the defendant. While the decision does not say so, we think the rule it announces is a correct understanding of the purpose of our statute upon the subject of a view of the premises by the jury. However, that case does not control this one. In this case the jury was instructed that:

". . . evidence comes only from the witnesses who have testified before you, under oath and from the exhibits which have been received in evidence and from no other source, except thatyou must also consider what you observed in viewing the premiseseven though contrary to the testimony of witnesses."

I have italicized that which in our opinion takes this case out of the decision in the Lee Doon case, supra. By it the jury was told in effect, as it was at liberty to believe and must have thought, that there were three kinds of evidence, namely, testimony of witnesses under oath, exhibits introduced in evidence and things they observed in viewing the premises; not that they should bear in mind what they observed in viewing the premises for the purpose of enabling them to make an intelligent application of the testimony of witnesses under oath and of documents introduced in evidence, but to be considered by them even though contrary to the testimony of witnesses.

The theory of the Lee Doon case, that "No evidence is allowed to be offered there to the jury under any rules or any circumstances; . . ." is wholly unimportant and inapplicable in the consideration of a case where, as here, the jury was instructed that the things they observed in making the view, spoken of by the authorities as mute witnesses, should be considered even though contrary to the testimony of witnesses. The instruction, speaking of things observed, although contrary to the testimony of witnesses, includes of course the testimony of witnesses for the defendant. Surely, under the circumstances, there can be no escape from the conclusions that the latter part of the instruction was contrary to the purpose and intent of Rem. Comp. Stat., § 344, and the rule of the Lee Doon case, supra; and that, in making the view, there was in legal effect the taking of testimony in the absence of the defendant, from which prejudice and reversible error must be presumed without the necessity of attempting to make any affirmative showing on the part of the defendant of prejudice.

Still another view of prejudice concerning the instruction relates to the time it was given. Had it been given before the jury was sent to view the premises, the defendant, seeing the dangerous and far-reaching effect of it, would have had an opportunity to withdraw his request that the jury make the view, or else insist upon the right to be present when the view was made. On the contrary, the instruction was not given until after the view was had, when of course there was no chance for the defendant to meet the error or prejudicial effect of the instruction in connection with the view.

Sending the jury outside of the state to view the premises also constituted reversible error. The trip into Idaho was not incidental to a view of other premises in this state, but the jury was sent several miles into that state to view premises in that state. No case directly in point has been found. The case ofJones v. State, 51 Ohio St. 331, 38 N.E. 79, mentioned in the majority opinion, was a homicide case tried on a change of venue. The question arose as to the power of the court to send the jury to the county in which the case arose to view a place where material facts occurred. Precisely what the court said in considering the statute authorizing a view by the jury was:

"The words are broad enough to authorize a jury to be sent anywhere, and no reason is apparent why a jury might not be sent to any place where a material fact occurred, if within the jurisdiction of this state."

People v. Bush, 71 Cal. 602, 12 P. 781, was tried on a change of venue, and the question arose as to the court's authority to order the jury to view the premises in the county where the homicide took place, and, in speaking of the statute for a view of the premises by the jury, the court said:

"This right is there given whether the place or places to be viewed lie in the county where the cause is then on trial, or in any other county of this state."

A decision in Nebraska was to the same effect, Beck v.Staats, 80 Neb. 482, 114 N.W. 633, 16 L.R.A. (N.S.) 768. True, as stated in the majority opinion, in the case of State v. Hawthorn, 134 La. 979, 64 So. 873, the appellate court held that the trial court was right in refusing a request to send a jury into another state to view property involved in the case. The reason for that holding was:

"The jury, as such, could not have exercised its functions in another state, where also it would have been beyond the supervision and control of the court."

In the present case, the majority opinion says that possibly the jury, while in Idaho, lost their qualifications as jurors, became private citizens and could have disbanded. In my opinion there is no doubt of it, the jury could not function in another state. That ended the trial. To say that what was a jury in the commencement of this trial could go beyond the territory of this state, lose their qualifications as jurors, there acquire information dignified by the subsequent instruction of the court as worthy of consideration though contrary to the testimony of witnesses, come back to this state, "again become sworn jurors" and then find the defendant guilty of a felony, is in our opinion fundamentally unsound. After the jury lost their qualifications as jurors by going over into Idaho, they never became jurors thereafter, they could not render a valid verdict. It is not a question of error without prejudice, or that imposes on the defendant the burden of showing prejudice. On the contrary, the error was fundamental, not capable of repair. It was a matter of the lack of power or authority in the jury to render any verdict whatever.

FRENCH, J., concurs with MITCHELL, C.J.