The opinion
Blake, J.
(dissenting in part) — I think appellant is in no position to claim error because of misconduct of the trial judge. Although the trial lasted for seven days after the incident complained of, appellant took no exception to the rebuke or the remarks made by the court, nor did he ask for a mistrial at any time. He wagered on a favorable verdict. Failing to get it, he then, for the first time, claimed error. No error can be based on improper conduct of court or counsel where it is allowed to pass without some exception being taken to it in the form of a motion to admonish the jury to disregard it or for a mistrial.
State v. Re
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gan,
8 Wash. 506 , 36 Pac. 472 ;
State v. Bailey,
31 Wash. 89 , 71 Pac. 715 ;
State v. Van Waters,
36 Wash. 358 , 78 Pac. 897 ;
State v. Wong Tung Hee,
41 Wash. 623 , 84 Pac. 596 ;
State v. Smails,
63 Wash. 172 , 115 Pac. 82 .
The case of
State v. Dalton,
43 Wash. 278 , 86 Pac. 590 , presents a situation strikingly analogous to the situation here. There, it was held, upon a trial for murder, where an unwilling witness for the state refused to' answer questions, that it was not error for the trial court to direct him to answer the questions, to look at the jury and to stop looking at the defendant, and then punish him for contempt in the presence of the jury.
I do not think appellant is entitled to a new trial on the first count of the information.