Volume 49 — Washington Reports, Second Series

[1] INDICTMENT AND INFORMATION — JOINDER OF COUNTS — CONNECTED ACTS. There was no misjoinder of counts in an information which charged the defendant in count I with assault with intent to rape a certain named female, in count II with assault with intent to rape a second female, and in count III with robbery at the time and place referred to in count II and connected therewith, it being charged that all acts were committed on the same day; and it was not error for the trial court to deny the defendant's motion for separate trials on counts I and III. [2] APPEAL AND ERROR — BRIEFS — POINTS AND ARGUMENTS. The supreme court will not consider an assignment of error based on the admission of evidence, where there is no argument in the appellant's brief in support thereof. [3] CRIMINAL LAW — EVIDENCE — ADMISSIBILITY — RECORDINGS — FOUNDATION FOR ADMISSION — NECESSITY. A proper foundation must be laid before a tape or wire recording can be admitted in evidence; the problem being to apply sufficient safeguards to assure true reproduction without creating an excessive burden of preliminary proof to establish admissibility. [4] SAME — FOUNDATION FOR ADMISSION — SUFFICIENCY. To lay a proper foundation for the use of tape or wire recordings, it must be shown that the device was capable of taking testimony and that its operator was competent to operate it; the authenticity and correctness of<page_number>Page 355</page_number> the recording must be established; it must be shown that changes, additions, or deletions have not been made; the manner of preservation of the record must be shown; speakers must be identified; and it must be shown that the testimony elicited was freely and voluntarily made, without any kind of duress. [5] SAME. In a criminal prosecution, held that a proper foundation had not been laid for the admission in evidence of a tape recording, and that it was therefore prejudicial error to admit it in evidence. [6] SAME — TRIAL — INSTRUCTIONS — DEFINITION OF OFFENSE. In a prosecution for assault with intent to commit rape, it was not error for the trial court, in an instruction, to define rape in the language of the statute (RCW 9.79.010), where the preceding instruction defined assault. [7] SAME — TRIAL — INSTRUCTIONS — PRESUMPTION OF INNOCENCE. In a criminal prosecution, it was not error for the trial court to instruct the jury that the law presumes a defendant to be innocent until proven guilty beyond a reasonable doubt; the instruction being almost identical with the statute (RCW <cross_reference>10.58.020</cross_reference>). [8] SAME — TRIAL — INSTRUCTIONS — PROOF OF GUILT. In a criminal prosecution, the word "merely" should be deleted from an instruction that the law "merely" requires that the jury shall be satisfied of the guilt of the defendant beyond a reasonable doubt. [9] SAME — TRIAL — INSTRUCTIONS — CONSIDERATION OF PUNISHMENT. In a criminal prosecution, the trial court properly instructed the jury that in arriving at a verdict the subject of penalty or punishment was not to be considered. [10] TRIAL — INSTRUCTIONS — REQUESTS — ALREADY GIVEN. A requested instruction was properly refused, where its subject matter was fully covered by an instruction which was given. [11] APPEAL AND ERROR — PRESERVATION OF GROUNDS — EXCEPTIONS TO REFUSAL TO GIVE INSTRUCTIONS — SPECIFIC EXCEPTIONS — NECESSITY. Under Rule of Pleading, Practice and Procedure 10, exceptions to instructions given and refused shall be sufficiently specific to apprise the judge of the points of law or questions of fact in dispute; and the supreme court will not consider assignments of error based on the trial court's refusal to give certain instructions where the appellant failed to assign cause for his exception to such refusal. [1] See 28 A.L.R. 2d 1182; 27 Am. Jur. 683-690.

[1] APPEAL AND ERROR — SUPERSEDEAS OR STAY OF PROCEEDINGS — GROUNDS FOR ALLOWANCE. In aid of its appellate jurisdiction, the supreme court has inherent power to grant all writs it deems necessary and proper to preserve the fruits of appeal for an appellant in the event such an appeal should prove successful; however, the issue presented by the appeal must be debatable, and the equities of the case must require that the <italic>status quo</italic> of the litigants be maintained. [2] SAME — DEBATABLE ISSUES. In an appeal from a judgment dismissing an action to prohibit a city council from conducting a hearing on the mayor's request that a member of the city's transit commission be removed, debatable issues, as joined by the pleadings, are presented both upon the issue of jurisdiction and upon the issue of the sufficiency of the mayor's alleged cause for removal. [3] OFFICERS — SUSPENSION AND REMOVAL — ORDER SELF-EXECUTING. An order depriving one of public office is self-executing; and in order to preserve the <italic>status quo</italic> to the person in office, an application for a writ of prohibition must be made before the office is forfeited. [4] APPEAL AND ERROR — SUPERSEDEAS OR STAY OF PROCEEDINGS — GROUNDS FOR ALLOWANCE — REMOVAL FROM PUBLIC OFFICE. In an appeal from a judgment dismissing an action to prohibit a city council from conducting a hearing on the mayor's request that a member of the city's transit commission be removed, it is necessary and proper that the <italic>status quo</italic> of the litigants be maintained until the appeal can be heard, and a writ of supersedeas will be granted pending the adjudication of the merits of the appeal. [3] See 3 Am. Jur. 196 <italic>et seq.</italic>