State v. Stephens , 116 Wash. 558 ( 1921 )

Tolman, J.

Appellant appeals from a conviction upon a charge of being a bootlegger, and assigns as error the overruling of his motion for a new trial, (a) because of certain statements alleged to have been made by tbe deputy prosecuting attorney in his closing argument to tbe jury; and (b) because, it is contended, tbe state prohibition law is superseded or suspended by tbe eighteenth amendment to tbe constitution of tbe United States, and tbe Volstead act passed pursuant thereto.

Upon tbe ground last stated, this court has already passed, bolding adversely to appellant’s contention. State v. Turner, 115 Wash. 170, 196 Pac. 638.

Upon tbe first contention, it is sufficient to say that tbe matters complained of are shown in tbe record only by affidavit of tbe appellant in support of bis motion for a new trial, made a part of tbe statement of facts, and it does not appear that any objection was made or exception taken at tbe time, or that any request was then made to have tbe jury instructed to disregard what are now said to be improper statements by tbe prosecutor. Furthermore, it does appear by tbe same affidavit that tbe jury was instructed to disregard any statements of counsel not borne out by tbe testimony, and tbe prosecutor, by counter affidavit, denies having made tbe prejudicial remarks attributed to him, and sets forth what be claims was said, amounting to no more than that which frequently occurs in tbe beat of trial and under provocation from opposing counsel.

Tbe trial judge who presided was of tbe opinion that tbe prosecutor made no statements which were prejudicial to tbe appellant, and, in view of tbe state of tbe record, we are not disposed to inquire into tbe matter. But if we were, we could not find that tbe trial court erred in so bolding.

Judgment affirmed.

Paeker, C. J., Holcomb, Main, and Mitchell, JJ., concur.