State v. Severns

141 P.2d 142, 19 Wash. 2d 18

• Court: Washington Supreme Court
• Decided: August 28, 1943
• Docket: No. 28998.
• Status: Published

Opinions

Mallery, J.

J. — The defendant, Harry Severns, was convicted of forcible rape in Klickitat county in September, 1941. He appéaled to this court and was granted a new trial. He was again convicted in December, 1942, on an amended information. This is an appeal from the latter conviction. The facts in this case are substantially the same as those set out in the opinion of this court in the first appeal as recorded in State v. Severns, 13 Wn. (2d) 542, 125 P. (2d) 659. It would serve no useful purpose to repeat them here.

The appellant makes eight assignments of error. His assignments numbered 2, 7, and 8 involve questions which were discussed in the above-cited opinion, and, being substantially the same here, will be controlled by it. The previous rulings were adverse to appellant’s present contentions.

Appellant’s first assignment of error will not be considered, because the instructions to the jury complained of are not set out in full in his opening brief. Rule XVI, subd. 5, of the Rules of the Supreme Court, 193 Wash. 25-a; State v. Hussey, 188 Wash. 454, 62 P. (2d) 1350; Smith v. Eldridge Motors, Inc., 199 Wash. 10, 90 P. (2d) 257, 93 P. (2d) 1120; Walker v. Copeland, 193 Wash. 1, 74 P. (2d) 469; State v. Severns, 13 Wn. (2d) 542, 125 P. (2d) 659; Moffitt v. Goldcamp, 195 Wash. 75, 79 P. (2d) 695; State v. Jensen, 194 Wash. 515, 78 P. (2d) 600.

Appellant’s second assignment of error is without merit. The evidence is ample to sustain the verdict.

Appellant’s assignments of error numbered 3, 4, and 5 relate to testimony about exhibits numbered 9 • (a sheet) and 10 (panties) and their admission in evidence.

Exhibit numbered 9 was- a bed sheet which had had several pieces cut out of it after it had come into the possession of the county sheriff. An appropriate objection was made by the appellant at the time of its admission, which was error. However, a careful scrutiny of the entire record reveals that it was not prejudicial error because the appellant, prior to the time it was offered in evidence, had, in cross-examination of the county sheriff, developed the full details in regard to it.

Furthermore, while this cross-examination went in without objection by the state, it was not apropos of anything in the direct examination of the witness. Since the appellant chose to develop the subject and elicited oral testimony on the very facts he now claims would be wrongfully inferred from the admission of the exhibit, we think the injury was self-invited. But for this, the admission of exhibit 9 would have constituted prejudicial error.

When exhibit 10 was offered in evidence, the appellant objected, but failed to give any reason or ground for the objection. It is well settled that an objection must apprise the court of the ground upon which it is made, otherwise no error can be predicated upon it. White v. Fenner, 16 Wn. (2d) 226, 133 P. (2d) 270.

Appellant’s seventh assignment of error concerns the following testimony of Sheriff House:

“Q'. What attempt did you make to determine who this hair came from? By Counsel for Defendant: We object. I think it is very patent here, but when it comes to the point of insinuations of the kind, he testified he did not know what it was, but what he took it to be, and they are going off on a side road as to some other attempt. I think it is ’entirely out of line. He was a peace officer at the time and he can testify what he found. He said at the outset it was something he took to be — By the Court: He may tell us what he did towards ascertaining its source. By Counsel for Defendant: May I have the record show an exception? By the Court: Yes. Q. What did you do? A. I asked Mr. Severns for a sample of hair off of the lower part of his body to send it to Washington, D. C., for comparison. Q. What did he do? A. He refused.”

We cannot hold that the question propounded to the witness revealed what the answer would be or that it would be inadmissible. The particular answer turned out to be, in fact, inadmissible because the appellant was not obliged to produce evidence against himself. It was therefore improper to show that he had refused to do so. However, this all appeared after the answer, and not before. A motion to strike the evidence should have been made. Appellant did not see fit to make it, and cannot now object because it was not stricken.

The judgment is affirmed.

Blake, J., concurs.

Millard, J., dissents.

Jeffers and Beals, JJ., concur in the result.