McInturff, J.
Defendant appeals from a verdict of guilty of two counts of kidnapping in the first degree, two counts of first-degree assault, and one count of illegal possession of a weapon.
About midnight on April 10, 1971, defendant, while driving his vehicle on the state highway between Omak and Okanogan, was stopped by Washington State Troopers Brackins and Cook. Defendant failed to successfully perform several tests; was arrested for driving while under the influence of alcohol; was checked for a weapon and then placed in the rear seat of the patrol car for a trip to the Okanogan County jail.
After traveling a short distance defendant displayed a .357 Magnum pistol and informed the troopers that he was now in charge. He directed the troopers to take him to his van-type vehicle, which had been towed from the scene of the arrest. Upon arrival, defendant ordered Trooper Cook to retrieve a rifle and ammunition belt from the rear of his vehicle. Defendant then ordered the officers to drive him to Mallott, Washington. During the trip, and after repeated threats to both troopers, defendant said: “Take that, cop,” and discharged the pistol in the vehicle but neither trooper was hit. The patrol car was driven off the road immediately; both troopers eventually disarmed the defendant.
Defendant entered a special plea of not guilty by reason of insanity and, prior to trial, defendant moved to strike the jury panel on the ground that the jury panel selection constituted discriminatory exclusion of members of the Indian race (defendant being a member of the Yakima Indian Tribe). During the hearing on this motion, the Okanogan County Clerk testified regarding the method used in selec
tion of juries; it was apparent this method was in substantial compliance, if not in fact strict compliance with RCW 2.36.060.
Defendant’s motion was denied.
Defendant first argues the trial court erred in upholding the jury selection procedure utilized, in that this method of selection constitutes discriminatory exclusion of members of the Indian race.
Purposeful discrimination in the selection of a jury panel founded upon race must be proven.
State v. Green,
70 Wn.2d 955, 425 P.2d 913 (1967);
State v. Abridge,
3 Wn. App. 274, 474 P.2d 114 (1970);
Swain v. Alabama,
380 U.S. 202, 13 L. Ed. 2d 759, 85 S. Ct. 824 (1965). The fact that the jury panel contains no non-Caucasian members is insufficient in itself to show discrimination.
State v. Green, supra; State v. Abridge, supra.
In the case of
State v. Finlayson,
69 Wn.2d 155, 157, 417 P.2d 624 (1966), the court stated:
Having determined that a fair and impartial jury was secured in
State v. Phillips,
65 Wash. 324, 327, 118 Pac. 43, we held that “. . . ‘if the prisoner has been tried by an impartial jury, it would be nonsense to grant a new trial or a
venire de novo
... in order that he might be again tried by another impartial jury.’ 1 Thompson, Trials, § 120.”
It is therefor clear that where there is substantial compliance with the statute, as there was in the case before
us, and the jury selected is fair and impartial, a defendant’s right to a fair trial is protected.
The jury selection procedure utilized in the present case complied with the statutory requirements of RCW 2.36.060. There is no showing by defendant of discrimination, let alone purposeful discrimination; nor is there any showing that the jury selected was not fair and impartial, or that defendant was denied his right to a fair trial. We find no error.
Defendant next urges he was denied both a fair trial and his right of appeal by the incompetence of his trial attorney. Defendant cites several instances in which his attorney could have objected to the introduction of evidence, and could have excepted to specific instructions. In
State v. Silvers,
70 Wn.2d 430, 433-34, 423 P.2d 539 (1967), the court stated:
Appellant next asserts that the attorney whom he had employed was incompetent and that because of his attorney’s incompetence he was denied a fair trial. We do not agree. An attorney who has been admitted to practice law in the state of Washington is presumed to be of sufficient skill and learning to adequately defend a person accused of a crime.
State v. Graeber,
46 Wn.2d 602, 283 P.2d 974 (1955). . . .
In
State v. Mode,
57 Wn.2d 829, 833, 360 P.2d 159 (1961), the court said: “Mistakes or errors of judgment do not establish the violation of a constitutional right.” The constitution guarantees a defendant a fair trial, not a perfect trial.
State v. Willis,
67 Wn.2d 681, 409 P.2d 669 (1966).
From the record, defendant’s allegations of incompetence of his trial attorney are at most errors of judgment but did not deny defendant a fair trial. We find no error.
Defendant next contends that the trial court erred in giving instruction No. 15:
You are instructed that the word “reward” as used in the kidnapping counts need not be money or thing of pecuniary value but may be satisfaction of mental or emotional condition such as vengeance.
At the time the instruction was given there, was no objection to the giving of this instruction, nor was an exception made to the giving of the instruction. Since no exception was taken to the instruction and the defendant proposed no instruction, this court will not consider the claimed error. As stated in
State v. Dean,
70 Wn.2d 66, 68-69, 422 P.2d 311 (1966), the court stated:
This court has held time and again that — except under the most grave and far-reaching circumstances, when to do otherwise would result in a palpable miscarriage of justice — it will not review claims of error as to instructions given or refused unless the trial court has been given timely opportunity to consider and correct the alleged error.
State v. Louie,
68 Wn.2d 304, 413 P.2d 7 (1966).
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McInturff, J.
Defendant appeals from a verdict of guilty of two counts of kidnapping in the first degree, two counts of first-degree assault, and one count of illegal possession of a weapon.
About midnight on April 10, 1971, defendant, while driving his vehicle on the state highway between Omak and Okanogan, was stopped by Washington State Troopers Brackins and Cook. Defendant failed to successfully perform several tests; was arrested for driving while under the influence of alcohol; was checked for a weapon and then placed in the rear seat of the patrol car for a trip to the Okanogan County jail.
After traveling a short distance defendant displayed a .357 Magnum pistol and informed the troopers that he was now in charge. He directed the troopers to take him to his van-type vehicle, which had been towed from the scene of the arrest. Upon arrival, defendant ordered Trooper Cook to retrieve a rifle and ammunition belt from the rear of his vehicle. Defendant then ordered the officers to drive him to Mallott, Washington. During the trip, and after repeated threats to both troopers, defendant said: “Take that, cop,” and discharged the pistol in the vehicle but neither trooper was hit. The patrol car was driven off the road immediately; both troopers eventually disarmed the defendant.
Defendant entered a special plea of not guilty by reason of insanity and, prior to trial, defendant moved to strike the jury panel on the ground that the jury panel selection constituted discriminatory exclusion of members of the Indian race (defendant being a member of the Yakima Indian Tribe). During the hearing on this motion, the Okanogan County Clerk testified regarding the method used in selec
tion of juries; it was apparent this method was in substantial compliance, if not in fact strict compliance with RCW 2.36.060.
Defendant’s motion was denied.
Defendant first argues the trial court erred in upholding the jury selection procedure utilized, in that this method of selection constitutes discriminatory exclusion of members of the Indian race.
Purposeful discrimination in the selection of a jury panel founded upon race must be proven.
State v. Green,
70 Wn.2d 955, 425 P.2d 913 (1967);
State v. Abridge,
3 Wn. App. 274, 474 P.2d 114 (1970);
Swain v. Alabama,
380 U.S. 202, 13 L. Ed. 2d 759, 85 S. Ct. 824 (1965). The fact that the jury panel contains no non-Caucasian members is insufficient in itself to show discrimination.
State v. Green, supra; State v. Abridge, supra.
In the case of
State v. Finlayson,
69 Wn.2d 155, 157, 417 P.2d 624 (1966), the court stated:
Having determined that a fair and impartial jury was secured in
State v. Phillips,
65 Wash. 324, 327, 118 Pac. 43, we held that “. . . ‘if the prisoner has been tried by an impartial jury, it would be nonsense to grant a new trial or a
venire de novo
... in order that he might be again tried by another impartial jury.’ 1 Thompson, Trials, § 120.”
It is therefor clear that where there is substantial compliance with the statute, as there was in the case before
us, and the jury selected is fair and impartial, a defendant’s right to a fair trial is protected.
The jury selection procedure utilized in the present case complied with the statutory requirements of RCW 2.36.060. There is no showing by defendant of discrimination, let alone purposeful discrimination; nor is there any showing that the jury selected was not fair and impartial, or that defendant was denied his right to a fair trial. We find no error.
Defendant next urges he was denied both a fair trial and his right of appeal by the incompetence of his trial attorney. Defendant cites several instances in which his attorney could have objected to the introduction of evidence, and could have excepted to specific instructions. In
State v. Silvers,
70 Wn.2d 430, 433-34, 423 P.2d 539 (1967), the court stated:
Appellant next asserts that the attorney whom he had employed was incompetent and that because of his attorney’s incompetence he was denied a fair trial. We do not agree. An attorney who has been admitted to practice law in the state of Washington is presumed to be of sufficient skill and learning to adequately defend a person accused of a crime.
State v. Graeber,
46 Wn.2d 602, 283 P.2d 974 (1955). . . .
In
State v. Mode,
57 Wn.2d 829, 833, 360 P.2d 159 (1961), the court said: “Mistakes or errors of judgment do not establish the violation of a constitutional right.” The constitution guarantees a defendant a fair trial, not a perfect trial.
State v. Willis,
67 Wn.2d 681, 409 P.2d 669 (1966).
From the record, defendant’s allegations of incompetence of his trial attorney are at most errors of judgment but did not deny defendant a fair trial. We find no error.
Defendant next contends that the trial court erred in giving instruction No. 15:
You are instructed that the word “reward” as used in the kidnapping counts need not be money or thing of pecuniary value but may be satisfaction of mental or emotional condition such as vengeance.
At the time the instruction was given there, was no objection to the giving of this instruction, nor was an exception made to the giving of the instruction. Since no exception was taken to the instruction and the defendant proposed no instruction, this court will not consider the claimed error. As stated in
State v. Dean,
70 Wn.2d 66, 68-69, 422 P.2d 311 (1966), the court stated:
This court has held time and again that — except under the most grave and far-reaching circumstances, when to do otherwise would result in a palpable miscarriage of justice — it will not review claims of error as to instructions given or refused unless the trial court has been given timely opportunity to consider and correct the alleged error.
State v. Louie,
68 Wn.2d 304, 413 P.2d 7 (1966).
Although we do not agree with the instruction,
we do not find that a refusal to consider the claimed error would result in a palpable miscarriage of justice. The undisputed facts in this case are very similar to
State v. Andre,
195 Wash. 221, 80 P.2d 553 (1938), where defendant forced a cab driver, by placing a knife against his neck, to take him to Portland, Oregon. In relation to the term “reward,” the
court, at page 225, quoting from
Gooch v. United States,
297 U.S. 124, 80 L. Ed. 522, 56 S. Ct. 395 (1935), stated: “ ‘Generally, reward implies something given in return for good or evil done or received.’ ” And at page 225-26, said:
[T]he word “reward” is broad enough to include within its meaning a benefit that will accrue to the transgressor by kidnaping an officer of the law to prevent him from making an arrest. [Or, as in this case, custodial detention.] If a benefit of that kind is included within the word “reward,” it necessarily follows that the benefit which the appellant in this case would receive by forcing Jones to assist him in his flight as a fugitive from justice would likewise be within the meaning of that term.
To escape physical arrest, or to attempt to do so, as the defendant did here, is within the broad definition of “reward.”
Judgment of the trial court is affirmed.
Munson, J., and Evans, J. Pro Tern., concur.
Petition for rehearing denied May 9, 1974.
Review pending by Supreme Court August 20, 1974,