give instruction in Washington

1975“This conclusion is supported by our decisions in Schalow v. Oakley, 18 Wn. (2d) 347, 139 P. (2d) 296 (1943), and Wood v. Myers, 48 Wn. (2d) 746, 296 P. (2d) 525 (1956).” To say from the record in this case that Mrs. Madill had more than one bottle of beer is conceivable; however, we do not know this as a fact from the evidence, and such a conclusion would be based on mere speculation. .

1964"This conclusion is supported by our decisions in Schalow v. Oakley, 18 Wn. (2d) 347, 139 P. (2d) 296 (1943), and Wood v. Myers, 48 Wn. (2d) 746, 296 P. (2d) 525 (1956)." [1] To say from the record in this case that Mrs. Madill had more than one bottle of beer is conceivable; however, we do not know this as a fact from the evidence, and such a conclusion would be based on mere speculation.

1975“This conclusion is supported by our decisions in Schalow v. Oakley, 18 Wn. (2d) 347, 139 P. (2d) 296 (1943), and Wood v. Myers, 48 Wn. (2d) 746, 296 P. (2d) 525 (1956).” To say from the record in this case that Mrs. Madill had more than one bottle of beer is conceivable; however, we do not know this as a fact from the evidence, and such a conclusion would be based on mere speculation. .

1964"This conclusion is supported by our decisions in Schalow v. Oakley, 18 Wn. (2d) 347, 139 P. (2d) 296 (1943), and Wood v. Myers, 48 Wn. (2d) 746, 296 P. (2d) 525 (1956)." [1] To say from the record in this case that Mrs. Madill had more than one bottle of beer is conceivable; however, we do not know this as a fact from the evidence, and such a conclusion would be based on mere speculation.

1977In both State v. Myers, 8 Wash. 177 , 35 P. 580, 756 (1894) and Linbeck v. State, 1 Wash. 336 , 25 P. 452 (1890), a divided court held that a statute required the court to give an instruction to the effect that a defendant's failure to take the stand was not grounds for an inference of guilt, even though no instruction was requested.

1977State v. Marsh, 126 Wash. 142 , 217 P. 705 (1923). [2] In both State v. Myers, 8 Wash. 177 , 35 P. 580, 756 (1894) and Linbeck v. State, 1 Wash. 336 , 25 P. 452 (1890), a divided court held that a statute required the court to give an instruction to the effect that a defendant's failure to take the stand was not grounds for an inference of guilt, even though no instruction was requested.

2002ER 105; State v. Aaron, 57 Wash.App. 277, 281 , 787 P.2d 949 (1990).

2002ER 105; State v. Aaron, 57 Wn.

1977State v. Marsh, 126 Wash. 142 , 217 P. 705 (1923). [2] In both State v. Myers, 8 Wash. 177 , 35 P. 580, 756 (1894) and Linbeck v. State, 1 Wash. 336 , 25 P. 452 (1890), a divided court held that a statute required the court to give an instruction to the effect that a defendant's failure to take the stand was not grounds for an inference of guilt, even though no instruction was requested.

1977State v. Marsh, 126 Wash. 142 , 217 P. 705 (1923). [2] In both State v. Myers, 8 Wash. 177 , 35 P. 580, 756 (1894) and Linbeck v. State, 1 Wash. 336 , 25 P. 452 (1890), a divided court held that a statute required the court to give an instruction to the effect that a defendant's failure to take the stand was not grounds for an inference of guilt, even though no instruction was requested.

2023In Gresham, the court said, “[O]nce a criminal defendant requests a limiting instruction, the trial court has a duty to correctly instruct the jury, notwithstanding defense counsel’s failure to propose a correct instruction.” 173 Wn.2d at 424 .

2016State v. Gallagher, 112 Wn.

1978Co., 58 Wn.2d 659, 669 , 364 P.2d 804 (1961), and cases and authorities cited.

1978Co., 58 Wn.2d 659, 669 , 364 P.2d 804 (1961), and cases and authorities cited.

1977State v. Marsh, 126 Wash. 142 , 217 P. 705 (1923). [2] In both State v. Myers, 8 Wash. 177 , 35 P. 580, 756 (1894) and Linbeck v. State, 1 Wash. 336 , 25 P. 452 (1890), a divided court held that a statute required the court to give an instruction to the effect that a defendant's failure to take the stand was not grounds for an inference of guilt, even though no instruction was requested.

1977State v. Marsh, 126 Wash. 142 , 217 P. 705 (1923). [2] In both State v. Myers, 8 Wash. 177 , 35 P. 580, 756 (1894) and Linbeck v. State, 1 Wash. 336 , 25 P. 452 (1890), a divided court held that a statute required the court to give an instruction to the effect that a defendant's failure to take the stand was not grounds for an inference of guilt, even though no instruction was requested.

1971State v. Badda, 63 Wn.2d 176 , 385 P.2d 859 (1963); State v. Mickens, 61 Wn.2d 83 , 377 P.2d 240 (1962).

1971State v. Badda, 63 Wn.2d 176 , 385 P.2d 859 (1963); State v. Mickens, 61 Wn.2d 83 , 377 P.2d 240 (1962).

1971State v. Badda, 63 Wn.2d 176 , 385 P.2d 859 (1963); State v. Mickens, 61 Wn.2d 83 , 377 P.2d 240 (1962).

1971State v. Badda, 63 Wn.2d 176 , 385 P.2d 859 (1963); State v. Mickens, 61 Wn.2d 83 , 377 P.2d 240 (1962).

1969State v. Lyskoski, 47 Wn.2d 102 , 287 P.2d 114 (1955).

1969State v. Lyskoski, 47 Wn.2d 102 , 287 P.2d 114 (1955).

1957But it does not hold, nor was there drawn in controversy, the right of counsel to comment upon such failure, and, indeed, the respondents in their brief do not cite any authority that such comment is misconduct, let alone that it is prejudicial misconduct requiring a new trial, [cf. Bengston v. Shain, 42 Wn. (2d) 404, 410, 255 P. (2d) 892 ] , 8 While it is unnecessary to decide that issue upon the record brought here, there is a wealth of decisional law that if the plaintiff has made a prima facie cáse and the defendant declines to introduce evidence, the jury is entitled to infer the reason t

1949The majority opinion then goes on to say that the views expressed in the Herwitz case "were pretty well weakened, if not wholly repudiated, in the opinion in State v. Costello , 133 Wn. 170 , 172 , 233 P. 307 ." An examination of the record in that case, in which the Herwitz case was not even mentioned, brings to view the fact that no assignment of error was predicated upon the refusal of the court to give an instruction such as proposed in the case at bar.

1949The majority opinion then goes on to say that the views expressed in the Herwitz case "were pretty well weakened, if not wholly repudiated, in the opinion in State v. Costello , 133 Wn. 170 , 172 , 233 P. 307 ." An examination of the record in that case, in which the Herwitz case was not even mentioned, brings to view the fact that no assignment of error was predicated upon the refusal of the court to give an instruction such as proposed in the case at bar.

1947Relative to this matter, we stated, in Otter v. Department of Labor & Industries, 11 Wn. (2d) 51, 118 P. (2d) 413 : “Appellant [department] assigns error upon the refusal of the court to give an instruction requested by it as follows: “ ‘You are instructed that while the testimony of non-expert witnesses has some bearing upon the question here involved, yet the actual facts in this case must be determined largely from the testimony of the medical witnesses.’ “This request was predicated on statements made in many of our cases to the effect that the ‘actual facts must be determined from the tes

1942A requested instruction which is in part incorrect is properly refused.” In the case of People v. Davis, 64 Cal. 440 , 1 Pac. 889 , the supreme court of California, in considering an argument that the trial court had erred in not giving the jury certain instructions requested by the defendant, said: “But when it is urged here that the court below erred in rejecting an instruction requested, we are justified in reversing the judgmeht only when it appears that it was the duty of the court to give the instruction exactly as requested.

1942A requested instruction which is in part incorrect is properly refused.” In the case of People v. Davis, 64 Cal. 440 , 1 Pac. 889 , the supreme court of California, in considering an argument that the trial court had erred in not giving the jury certain instructions requested by the defendant, said: “But when it is urged here that the court below erred in rejecting an instruction requested, we are justified in reversing the judgmeht only when it appears that it was the duty of the court to give the instruction exactly as requested.

1941Appellant assigns error upon the refusal of the court to give an instruction requested by it as follows: “You are instructed that while the testimony of non-expert witnesses has some bearing upon the question here involved, yet the actual facts in this case must be determined largely from the testimony of the medical witnesses.” This request was predicated on statements made in many of our cases to the effect that the “actual facts must be determined from the testimony of the medical witnesses.” Kavaja v. Department of Labor & Industries, 126 Wash. 284 , 218 Pac. 196 ; Matson v. Department of

1941Appellant assigns error upon the refusal of the court to give an instruction requested by it as follows: “You are instructed that while the testimony of non-expert witnesses has some bearing upon the question here involved, yet the actual facts in this case must be determined largely from the testimony of the medical witnesses.” This request was predicated on statements made in many of our cases to the effect that the “actual facts must be determined from the testimony of the medical witnesses.” Kavaja v. Department of Labor & Industries, 126 Wash. 284 , 218 Pac. 196 ; Matson v. Department of

1941Appellant assigns error upon the refusal of the court to give an instruction requested by it as follows: “You are instructed that while the testimony of non-expert witnesses has some bearing upon the question here involved, yet the actual facts in this case must be determined largely from the testimony of the medical witnesses.” This request was predicated on statements made in many of our cases to the effect that the “actual facts must be determined from the testimony of the medical witnesses.” Kavaja v. Department of Labor & Industries, 126 Wash. 284 , 218 Pac. 196 ; Matson v. Department of

1941Appellant assigns error upon the refusal of the court to give an instruction requested by it as follows: “You are instructed that while the testimony of non-expert witnesses has some bearing upon the question here involved, yet the actual facts in this case must be determined largely from the testimony of the medical witnesses.” This request was predicated on statements made in many of our cases to the effect that the “actual facts must be determined from the testimony of the medical witnesses.” Kavaja v. Department of Labor & Industries, 126 Wash. 284 , 218 Pac. 196 ; Matson v. Department of

1934We see no objection to the instruction in any of the particulars of which complaint is made. ■ *564 Filially, it is contended that it was error for the court to give the instruction complained of “after the jury had been deliberating approximately two-days.” The answer to this contention will be found in State v. Linden, 171 Wash. 92 , 17 P. (2d) 635 , where it was held not to be error for the court, of its own motion, to recall the jury after they had been deliberating for approximately two days and give an additional instruction.

1934We see no objection to the instruction in any of the particulars of which complaint is made. ■ *564 Filially, it is contended that it was error for the court to give the instruction complained of “after the jury had been deliberating approximately two-days.” The answer to this contention will be found in State v. Linden, 171 Wash. 92 , 17 P. (2d) 635 , where it was held not to be error for the court, of its own motion, to recall the jury after they had been deliberating for approximately two days and give an additional instruction.

1918State v. Cushing, 17 Wash. 544 , 50 Pac. 512 ; State v. McPhail, 39 Wash. 199 , 81 Pac. 683 ; State v. Ash, 68 Wash. 194 , 122 Pac. 995 , 39 L.

1918State v. Cushing, 17 Wash. 544 , 50 Pac. 512 ; State v. McPhail, 39 Wash. 199 , 81 Pac. 683 ; State v. Ash, 68 Wash. 194 , 122 Pac. 995 , 39 L.

1918State v. Cushing, 17 Wash. 544 , 50 Pac. 512 ; State v. McPhail, 39 Wash. 199 , 81 Pac. 683 ; State v. Ash, 68 Wash. 194 , 122 Pac. 995 , 39 L.

1918State v. Cushing, 17 Wash. 544 , 50 Pac. 512 ; State v. McPhail, 39 Wash. 199 , 81 Pac. 683 ; State v. Ash, 68 Wash. 194 , 122 Pac. 995 , 39 L.

1918State v. Cushing, 17 Wash. 544 , 50 Pac. 512 ; State v. McPhail, 39 Wash. 199 , 81 Pac. 683 ; State v. Ash, 68 Wash. 194 , 122 Pac. 995 , 39 L.

1918State v. Cushing, 17 Wash. 544 , 50 Pac. 512 ; State v. McPhail, 39 Wash. 199 , 81 Pac. 683 ; State v. Ash, 68 Wash. 194 , 122 Pac. 995 , 39 L.

1900In Freidrich v. Territory, 2 Wash. 358 ( 26 Pac. 976 ), it was held that, although there was no exception to the whole or a part of the charge on the ground that it is an argument upoti the facts, yet, in a capital case, if there is prejudicial error, which is patent upon the face of the record, denying the accused the fair and impartial trial which is his right, the supreme court will not allow these technical objections to deprive the defendant of a new trial.

1900In Freidrich v. Territory, 2 Wash. 358 ( 26 Pac. 976 ), it was held that, although there was no exception to the whole or a part of the charge on the ground that it is an argument upoti the facts, yet, in a capital case, if there is prejudicial error, which is patent upon the face of the record, denying the accused the fair and impartial trial which is his right, the supreme court will not allow these technical objections to deprive the defendant of a new trial.

1900It is true that in State v. Ackles, 8 Wash. 462 ( 36 Pac. 597 ), we held that under the information in that case it was not competent for the jury to return a verdict of guilty of assault with a deadly weapon with intent to do bodily harm, but for the reason that the lesser crime was not described in the information; there being no allegation that the assault was without considerable provocation, or that it was the impulse of a wilful, abandoned, or malignant heart.

1900It is true that in State v. Ackles, 8 Wash. 462 ( 36 Pac. 597 ), we held that under the information in that case it was not competent for the jury to return a verdict of guilty of assault with a deadly weapon with intent to do bodily harm, but for the reason that the lesser crime was not described in the information; there being no allegation that the assault was without considerable provocation, or that it was the impulse of a wilful, abandoned, or malignant heart.