Volume 4 — Washington Appellate Reports

<bold>[1] Deeds — Delivery — Necessity — Determination.</bold> In order that a deed be effective between the parties, there must be a delivery by the grantor to the grantee; a valid delivery, under the circumstances, depends upon the intention of the grantor. [See 23 Am.Jur.2d, Deeds § 78 <italic>et seq.</italic>] <bold>[2] Gifts — Elements.</bold> The essential elements of a gift are an intention on the part of the donor to presently give, a subject matter capable of passing delivery, and an actual delivery at the time. <bold>[3] Trial — Parties — Intervention — Discretion of Court.</bold> The granting or denial of a motion to intervene is discretionary with the trial court. <bold>[4] Landlord and Tenant — Unlawful Detainer — Nature of Action —</bold> <bold>Jurisdiction — Limitation.</bold> An unlawful detainer action pursuant to RCW 59.12 is a summary proceeding limited to determining the right to possession of real property; the court is not permitted to hear and determine the issue of title. <bold>[5] Community Property — Judgment — Parties Affected —</bold> <bold>Individual Action by Married Person.</bold> Where a married man brings an action, and has judgment rendered against him, as a single man, the judgment is not binding on the man's wife in her individual capacity or the marital community; nor does it affect any defense or prejudice any rights that could have been raised in the original action by the wife or the community.

<bold>[1] Evidence — Hearsay — Res Gestae — Excited Utterances —</bold> <bold>Elements.</bold> The reliability of statements admitted as excited utterances under the res gestae exception to the hearsay rule, is furnished by the excitement or spontaneity of the statements which suspend the witness' power of reflection or fabrication. The statement must relate to and explain the main event; it must be natural, factual, spontaneous, and made under circumstances as to exclude deliberation; and it must appear that the declaration was made by a participant or witness to the main event. <bold>[2] Evidence — Hearsay — Exceptions — Basis.</bold> Exceptions to the hearsay rule are made when reason and logic suggest reliability and trustworthiness of the evidence. <bold>[3] Evidence — Hearsay — Excited Utterances — Distinguished From</bold> <bold>Res Gestae.</bold> The label "res gestae" does not properly describe the excited utterance exception to the hearsay rule, nor demonstrate the reasons for such exception. <bold>[4] Evidence — Hearsay — Res Gestae — Excited Utterances —</bold> <bold>Spontaneity.</bold> The fact that statements are made in response to questions does not, of itself, preclude their admissibility as excited utterances. Admissibility depends upon whether the declarant was still under the influence of the event so that his statement could not have been the result of fabrication, intervening actions, or the exercise of choice or judgment. <bold>[5] Evidence — Hearsay — Res Gestae — Excited Utterances —</bold> <bold>Spontaneity.</bold> A spontaneous declaration need not necessarily be simultaneous with the event it describes, so long as it excludes the presumption of deliberation or fabrication. [See Ann. 19 A.L.R.2d 579; 29 Am.Jur.2d, Evidence § 719.] <bold>[6] Witnesses — Examination — Children — Leading Questions —</bold> <bold>Discretion of Court.</bold> The use of leading questions during the direct examination of a child witness is a matter within the sound discretion of the trial court.

<bold>[1] Workmen's Compensation — Injury — Unusual Emotional Strain.</bold> An unusual emotional strain resulting in a heart attack and arising directly from employment can constitute "a sudden and tangible happening of a traumatic nature" within the meaning of RCW <cross_reference>51.08.100</cross_reference>, which defines injury for purposes of industrial insurance benefits. [See Ann. 109 A.L.R. 892, 58 Am. Jur., Workmen's Compensation (1st ed. § 250).] <bold>[2] Trial — Taking Case From Jury — Sufficiency of Evidence —</bold> <bold>Judgment Notwithstanding Verdict.</bold> When the evidence presents questions on which reasonable minds may differ, a judgment notwithstanding the verdict is improper. <bold>[3] Appeal and Error — Statement of Facts — Failure to Timely</bold> <bold>File.</bold> A motion to dismiss based on a late filing of the statement of facts was denied where the respondent was not prejudiced by the delay.

<bold>[1] Criminal Law — Evidence — Identification — Showing of</bold> <bold>Photograph Prior to In-court Identification.</bold> When photographs are used for identification in a criminal investigation, due process of law requires that neither the content of the photographs nor the conduct of the police officers be so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. The determination is to be made by the court upon the totality of the factual circumstances in each case. [See Ann. 71 A.L.R.2d 449; 29 Am.Jur.2d, Evidence §§ 371-373.] <bold>[2] Criminal Law — Evidence — Identification — Photographs</bold> <bold>Previously Identified.</bold> The admission of photographs of a defendant which have been identified by the victim of a crime lies within the discretion of the trial court and will not be disturbed absent gross abuse of the discretion. <bold>[3] Criminal Law — Right to Counsel — Effective Assistance of</bold> <bold>Counsel — New Counsel on Appeal.</bold> A defendant is bound by the tactical decisions of his trial counsel even though he is represented by different counsel on appeal. <bold>[4] Evidence — Video Tape — Authentication.</bold> The requirement for admission of video tape recordings is the same as that for still photographs, <italic>i.e.,</italic> testimony by some witness, not necessarily the person who made the tape, as to when, where, and under what circumstances the tape was made, and that the video tape accurately portrays the subject illustrated. Admission lies within the discretion of the trial court; it is preferable that the court and opposing counsel view the tape presentation in the absence of the jury so as to reduce the risk of error or mistrial.<page_number>Page 589</page_number> <bold>[5] Criminal Law — Deadly Weapon — Submission of Issue to Jury.</bold> If a trial court has a reasonable basis to believe from the evidence that the defendant was armed with a deadly weapon as defined by RCW <cross_reference>9.95.040</cross_reference> at the time of commission of the crime, it may submit to the jury the issue of whether or not the defendant was so armed. <bold>[6] Criminal Law — Deadly Weapon — What Constitutes — Pistol.</bold> Under RCW <cross_reference>9.95.040</cross_reference>, which defines a pistol as a deadly weapon, it is sufficient to show that a defendant was armed with a pistol without showing that the pistol was loaded or capable of being fired.

<bold>[1] Criminal Law — Right to Counsel — Retained Counsel — Nature</bold> <bold>of Right.</bold> Under Const. art. 1, § 22 (amendment 10) and the fourteenth amendment to the federal constitution, an accused person is entitled to be represented by <italic>retained</italic> counsel at every stage of the proceedings against him, and not only at those stages deemed "critical" for purposes of appointment of counsel for an indigent defendant; however, the stage of the proceeding may determine whether the denial of the right of representation by retained counsel is harmless or reversible error. [See 21 Am.Jur.2d, Criminal Law § 313.] <bold>[2] Criminal Law — Right to Counsel — Retained Counsel —</bold> <bold>Preliminary Hearing.</bold> The refusal, without just cause, to grant a continuance so that an accused person can be represented at a preliminary hearing by his retained counsel is constitutional error, and prejudice is presumed. The burden is on the state to show that the absence of retained counsel was harmless beyond a reasonable doubt. The benefits of retained counsel at a preliminary hearing include not only matters by which skilled counsel could obtain a dismissal of the charge or an eventual acquittal, but also the protection of the dignity and personal integrity of the accused, and the psychological assurance of being represented by counsel in whom the accused has confidence. <bold>[3] Criminal Law — Right to Counsel — Retained Counsel — Denial</bold> <bold>— Remedy.</bold> Where the validity of a criminal conviction depends upon whether the erroneous denial of retained counsel at a preliminary hearing was prejudicial, the cause may properly be remanded by an appellate court with instructions that a new trial is to be granted unless the state carries the burden of proving beyond a reasonable doubt that such error was harmless to all benefits reasonably flowing from the right to retained counsel at such a hearing.

<bold>[1] Homicide — Murder — Attempted Murder — Statutory Provision.</bold> RCW 9.48.030, which defines murder in the first degree, and RCW 9.01.070, which defines attempts, establish the crime of attempted murder in the first degree. <bold>[2] Criminal Law — Attempts — Solicitation — Hiring Person to</bold> <bold>Commit Crime.</bold> Solicitation involves no more than asking or enticing someone to commit a crime, and does not constitute the overt act directed toward its commission that is a necessary element of the crime of attempt. Hiring someone to commit a crime is an overt act beyond the sphere of mere solicitation and may constitute the crime of attempt. [See Ann. 98 A.L.R. 918; 21 Am.Jur.2d, Criminal Law § 110 <italic>et seq.</italic>] <bold>[3] Criminal Law — Attempts — Elements.</bold> An attempt to commit a crime involves the two coinciding elements of an intent to commit the crime and the performance of some overt act directed toward its commission. The overt act must reach far enough as to amount to a commencement of the consummation of the crime, but need not be the last possible act to such consummation. When resolving where preparation ceases and an attempt begins, each case depends on its own facts. <bold>[4] Criminal Law — Attempts — Overt Act — Evidence.</bold> When intent to commit a crime is clearly shown, slight overt acts in furtherance of the scheme will constitute an attempt. <bold>[5] Criminal Law — Defenses — Impossibility.</bold> It is not necessary that an attempted crime be factually possible. It is sufficient that it be apparently possible to the defendant. <bold>[6] Criminal Law — Entrapment — Elements.</bold> A successful defense of entrapment must show that the criminal design originated in the mind of the police officer <italic>and also</italic> that the defendant was lured or induced to commit a crime he had not intended to commit. <bold>[7] Criminal Law — Insanity — Time of Entering Plea.</bold> The provisions of RCW 10.76.020, regarding the timing of entering a plea of not guilty by reason of insanity, should be complied with in order that the state may be properly advised at the earliest time possible that reliance will be made upon such a defense. Entering such a plea on the eve of trial some 2 months after obtaining a cooperative psychiatric examination cannot be considered a good faith compliance with the statute. <bold>[8] Criminal Law — Insanity — Evidence — Examination Authorized</bold> <bold>for Other Purposes.</bold> The prosecution was entitled to rebut evidence of the defendant's insanity <italic>at the time of the</italic> <italic>crime</italic> with the testimony<page_number>Page 835</page_number> of a psychiatrist who had examined the defendant shortly after arrest for the sole purpose of determining <italic>competency</italic> <italic>to stand trial,</italic> where the defendant, by not entering a plea of insanity until some 2 months after having reason to know that such defense was possible, prevented the prosecution from having any meaningful psychiatric evaluation other than the one to determine competency to stand trial.