CRIMINAL LAW AND PROCEDURE - APPEAL - REVERSAL OF CONVICTION DESPITE GUILT AS REBUKE TO THE ADMINISTRATION OF JUSTICE

In a prosecution for murder the prosecuting attorney, in his opening address, improperly stated that the evidence would show that both defendants had previous records for burglary and robbery, had served time in penitentiaries, and that the state would ask that the two men be hanged on the basis of this and other evidence. No objection or move for a mistrial was made at the time by the defendants, nor was the court requested to instruct the jury to disregard the remarks. Defendants were unquestionably guilty of murder, the evidence for the state being conclusive, while that of the defendants was weak and ineffective. The trial jury found the defendants guilty as charged. Held, on appeal by a five-to-four decision, that the case be remanded for retrial because of prejudicial remarks of the prosecuting attorney by reason of which defendants were deprived of the fair and impartial trial guaranteed them by law. State v. O\u27Donnell, (Wash. 1937) 71 P. (2d) 571