State v. Johnston

Citations

• 83 Wash. 1
• 144 P. 944
• 1914 Wash. LEXIS 1575

Syllabus

<p>Criminal Law — Trial — Selection op Jury — Number op Challenges — “Capital Offenses” — Statutes —Construction. Under Rem. & Bal. Code, § 2138, providing that, in prosecutions for capital offenses, the defendant may challenge peremptorily twelve jurors, and six jurors in prosecutions for offenses punishable by imprisonment in the penitentiary, “capital offenses” refers only to those punishable by death; and the death penalty having been abolished, the right to twelve peremptory challenges is suspended; and the fact that the crime was committed prior to the abolishment of the death penalty is immaterial, where the accused was not insisting on the application of the capital penalty.</p> <p>Same — Appeal—Preservation of Grounds — Misconduct of Counsel — Record—Waiver of Error. Error in misconduct of the prosecuting attorney in his argument to the jury cannot be urged where the only foundation laid was exceptions to the alleged use of certain language, it was not claimed that the misconduct was so flagrant that it could not be cured by instructions, no instructions were requested, and the offending language was not preserved in the record.</p> <p>Appeal — Record—Affidavits. Misconduct of counsel in argument to the jury occurring in the presence of the court cannot be shown on appeal by affidavits setting forth the acts constituting such •misconduct; since the language used must be certified to by the trial judge.</p>