Duncan v. State

John I. Purtle, Justice, concurring. I concur in the result reached by the majority. However, I feel compelled to set out additional facts which I think constituted error. Before stating these additional facts, I believe the appellant was held incommunicado from Wednesday through Sunday and, in all probability, much longer. I agree with the majority that three and one-half days is too long to be so held.

I agree that the same evidence relating to the alleged homicides in Washington will not likely be introduced at the second trial. However, there is the possibility that such matters may still be pending in the Washington courts when this case is retried. Therefore, I would hold that the evidence that was presented at the trial below would be reversible error if it were to be introduced again.

There is a second point which I think probably will not reoccur, but it should be guarded against. A member of the Sheriffs’ Mounted Patrol, whether paid or not, is still an officer and should be rejected for cause from serving as a juror. In most cases there are hundreds of prospective jurors around. I see no need to invite error where it can be avoided.

The third point I wish to comment on is the state’s attempt to offer Exhibit # 21 into evidence after having been instructed not to do so. Although such action is subject to immediate treatment and cure by the trial court, it is nevertheless error to allow the state to bring this evidence to the jury’s attention as was done in this case.

Finally, I think the trial court erroneously admitted the front page of the arrest warrant for Duncan which had been issued by the state of Washington. This information is so highly unreliable and serves no purpose other than to influence and inflame the jury; therefore, its introduction could result in prejudicial error.