State v. Lyle

178 P. 468, 105 Wash. 435, 1919 Wash. LEXIS 602

• Court: Washington Supreme Court
• Decided: January 24, 1919
• Docket: No. 14908
• Status: Published

Opinion

Mackintosh, J.

The appellant, a druggist, was convicted before a jury of having unlawfully sold intoxicating liquor. The state introduced as one of its exhibits the druggist’s register showing the sale of alcohol to the prosecuting witness. The book also contained a record of some thousand other sales occurring in the six months preceding the sale in question. The page of the register upon which appeared the sale to the prosecuting witness was the only page material to the case, but the entire book was actually physically in the possession of the jury, the one page on which appeared the prosecuting witness’ signature, and which was the only page marked as an exhibit, not having been detached from the balance of the book. At no time had the appellant requested that this page be separated from the other pages, and, by allowing the entire book to be received, he must be held to have accepted the possibility of having the jury inspect the entire register, and it is too late for him now to complain of that as error. He must have known that, although the court instructed the jury that the one page only was in evidence, jurors are sometimes curious and are liable to turn over the leaves to see what may be discovered on the other pages. The way to have protected himself against this would have been to have insisted that the page which was properly admissible in evidence, be separated from the balance of the book.

The appellant claims that the presentation of the entire book was prejudicial to him in an additional way; that counsel for the state, in arguing to the jury, called its attention to the fact that there were a great number of sales recorded in the register, and asked the jury to look over the names of the persons appearing upon the register and determine “how many names you will recognize, and how many names you will find upon the Yakima county tax lists.” Exception was taken to these remarks, and the jury was instructed by the court, as he had theretofore instructed it, that it was not to consider the register for any purpose “except as it relates to the transaction in which the prosecuting witness had a part, and any statement made by counsel regarding the book or what it shows, not in connection with that transaction, should be wholly disregarded, as it has no bearing on the case. ’ ’ The misconduct of counsel for the state was cured by this instruction.

It is further contended that the affidavits taken from the jurors show that the jurors in their deliberations considered the entire register, and that this was a determining factor in their verdict. We take it that these affidavits are an attempt by the jurors making them to impeach their own verdict, and for that reason they cannot be received. The two other errors assigned possess no merit. The judgment is affirmed.

Chadwick, C. J., Mitchell, Tolmah, and Maih, JJ., concur.