2 Wash. 291 | Wash. | 1891
Lead Opinion
The opinion of the court was delivered by
— The appellant was indicted jointly with John B. Rose, George E. Rose and James E. Gibbons for the murder of Bina Frederickson, near South Bend, in Pacific county, on Thursday, January 30, 1890, and was tried separately. Before the trial a motion to change the place of trial to another county, on the ground of prejudice on the part of the community against the accused, supported by numerous affidavits, showing the circulation of some intemperate newspaper articles among the people of the county, and considerable hostile feeling in the neighbor
The prosecution in this case relied entirely upon the testimony of George Bose. Without his statement there were some circumstances which might have pointed to the accused as the person, or one of the persons, who had committed the homicide; but, uuder the theory of the state upon the trial, these circumstances were entirely laid aside, and became of no value. George Bose was the first witness called for the prosecution, and the defense at once objected to his being allowed to testify, on the ground that, being jointly indicted with the prisoner on trial, he could not be a witness until he had been discharged. The court overruled the objection, and permitted him to testify, which appellant urges as error. But under the liberal system we have, which permits almost every person to testify in any cause, whether civil or criminal, we think it was not error to allow one indicted with the prisoner, but not put upon trial with him, to be used as a witness. The language of § 1092 of the code is: “ When two or more persons are included in one prosecution, the court may, at any time before the defendant has gone into his defense, direct any defendant to be discharged, that he may be a witness for the territory;” and it will thus
The deceased, Sina Frederickson, was undoubtedly the victim of a most brutal murder, somewhere near the time alleged (January 30, 1890), and it is almost equally certain that at nearly the same time, and by the same hand or hands, her husband, Jens Frederickson, met a like violent death. Both were probably instantly killed — she by a rifle bullet, he by a load of small shot and percussion caps; both being shot through the head. Their bodies were found about a mile apart — hers being buried under the refuse of a hog-pen upon the premises of John B. Bose, near the shore of Shoalwater Bay, about four miles below South Bend, and on the opposite side of Willapa river; and his being laid in a trail made by cattle, close to some large logs, further to the west, and within a few rods of high water mark on the bay. The grave in which Mrs. Frederickson was buried had been excavated to a depth of two or three feet; but her husband lay in the hollow made by the cattle in jumping over the logs where the ground was swampy, and was covered by very little earth and some coarse sods, just
George Rose was the first witness for the state, and the
“Well, on the 29th day of January father came to me in the evening and says to me he wanted me to go down to the place the next day with him to look after some cattle. And Ed. Gibbons stood about ten or twelve feet from him, and he said he would like to go down with us. So the next morning we went down, about half past 6 o’clock in the morning — left South Bend. And all three went down to the place, and when we got down there we saw Edwards was there; and we went in the house, and father and Gibbons and Edwards was standing there talking awhile in front of the house, by the gate. Father says to Edwards: ‘ You better go up and get Frederiekson to help bring the cattle down; ’ so father and Edwards went off after Frederickson, to bring the cattle down, and brought him down, and went down after the cattle. And we walked along the bluff, and there was a hawk set up on a tree, and Gibbons says to me, ‘Give me your gun, and I will see if I can kill that hawk; ’ and I let him have the gun, and after he shot the hawk he kept the gun, thinking he might see some geese to shoot at; and we walked down until we got down by the cow trail, and Gibbons walked ahead, father next, and I was behind father, and Frederiekson behind. And I heard Gibbons say to Frederiekson, ‘Look here, Frederickson,’ and just thén he shot; and I turned around and said, ‘ That’s a pretty way to use a man after calling him to help drive the cattle up;’ and Gibbons says, ‘That’s the kind of cattle we came down after.’ I told him if I had known that I would not have come down with them. So after Gibbons shot Frederiekson, Edwards walked into the brush and got a spade out and began to look around for a place to bury him; and it was in the cow trail; and father says, ‘That’s good enough place right here;’ and Edwards went to work and dug the grave, and I went off ten or*298 fifteen feet from where they was, and sat down on a log, and never looked up at them until after they had the grave ready, and called me to help lay him in the grave. They had his gum boots pulled off and gum coat, and laid them down where he was dropped; and I helped put him in the grave, and throwed over what loose dirt there was, and then they pulled some grass sod up and put it on top of him; and after that father picked up his gum coat and boots and throwed them down in the slough as we walked along about a hundred yards from where he was buried; and we walked up to the house, and as we got along the beach father said, ‘Better hurry up and get Mrs. Frederickson down ; she may suspect something — go away; so they went up and got Mrs. Frederickson, and when we were going by the house Edwards said to me, ‘Give me your shotgun.’ I told him I would not let him have it, and father commenced cursing and swearing at me because I would not let him have it; and Edwards said, ‘ I will go and get the rifle; don’t make any fuss about it; ’ and they was gone up after Mrs. Frederickson about twenty minutes ; and I heard some one scream, and I went out and looked, and saw her coming along the fence; father had hold of one arm, and Edwards had hold of the other; dragging her through the mud-hole; and after they got through the mud-hole Edwards walked ahead and father walked behind, and just as' they got inside the gate Edwards picked up the rifle and walked up about ten feet from the gate, and Mrs. Frederickson got inside, and asked what they had done with her husband. Edwards says, ‘We shot him;’ and she says, ‘Then kill me; I don’t want to live any longer;’ and Edwards raised the rifle and shot her, and they buried her right there behind the pig-pen, and Edwards dug the grave; and after the grave was dug father called me to help put her in the grave; and I came up to help put her in the grave; and we covered her up, and threw some sods on top of her, so they would not see the loose dirt; and father and Edwards came back to Frederickson’s house, and locked the door; and when they came down Edwards carried the shotgun, and Gibbons carried the revolver; and father called me out to the front of the house by the gate, and he had $50, and gave it to me, and*299 he said if he ever found out that I told this on him I would be dead first; and, furthermore, if I went down to the place next week, and it came up stormy, and anybody asked what became of Eredericksons, to say that I saw them go out the day of the storm; and before we left that evening Gibbons gave me the revolver. I told him that I did not want it, but he gave it to me, and I kept it until the next-. We, father, Gibbons and I, left the place about 5 o’clock that afternoon, and got up to South Bend about half past seven, and had supper by ourselves, my sister Frances preparing it. Edwards stayed at the house. He was to take the boat (Frederickson’s) and put it out and sink it that night in the river; swamp it.”
Asked what any of them stated as the reason for killing these people, he said, “Well, father wanted to get that 160 acres of land there, is the reason he killed them;” and that, in December previous, Edwards had cleared a spot on the Frederickson land to build a house on, and told Bose he would take the place for him.
We have given this statement in full, in the words of the witness, for the reason that, taken with the other facts in the case, it is one of the most remarkable cases in the history of criminal law. Here is a boy of eighteen, who accuses his father, a man past seventy years of age, of planning and executing this horrible crime, and of carrying his son into it, as a witness of a double murder, for the pitiful motive of clearing the way to the possible acquisition of a parcel of almost worthless laud, at the same time that neither the father, Edwards nor Gibbons provides himself with any weapon whatever when going on their expedition of murder, but depends entirely upon the chance shotgun in the hands of the boy. George, on cross-examination, admitted having had in his possession a pistol belonging to Frederickson; that it had had a leather handle; that he had cut the leather off, and also Frederickson’s initials from the wood beneath the leather; that he kept it under his bed, where his mother found it; and that, in response to his
“My name is George Nose. My age is nineteen years. My father’s name is John B. Nose. My father wanted this 160 acres of land that Jens Frederickson took. He wanted Edwards or Gibbons to take it, and pay out on it, and then deed it to my father. They, Gibbons (who is one of the meanest men ever came into the country) and Edwards and my father all made it up as to how they would kill Frederickson and his wife. After Edwards made up his mind to take the place for father, he cut down some trees on the place, but father found out after Frederickson had built a shake shanty on the claim, that Frederickson had commenced a contest to get the land. On Wednesday or Thursday of the last week in January, father, Gibbons and I took a dingey, and crossed the bay to father’s ranch, where we found John Edwards. We had it all made up as to how we were to do the killing.”
Now, in his testimony George repudiates all knowledge on his part of the purpose of the party up to the instant when Frederickson was shot, whereas in the statement he shows full participation in the scheme before they left South Bend; the bearing of which is, that under the statement he was not only an accessory before the fact, but an active particeps criminis, whereas, according to his testimony, he was the innocent victim of association, who protested to the extent of refusing his gun at the assassination of the woman, and afterward merely endeavored to shield his father, which he had a right to do under the statute. His testimony was, therefore, in the-presence of his statement, all the more carefully to be scrutinized, as, if believed as he gave it, it exonerated himself from all responsibility for these two crimes, at the expense of his father and the other two men.
On Sunday, February 2, Edwards went, by way of As
We have now stated the substance of all the prosecution’s testimony in the case, and it would seem that it was all that it was possible to produce, as extraordinary efforts were made by the authorities and citizens to secure the conviction of the parties guilty of the Frederickson murders. During a part at least, of the five months from the time of his arrest to the trial oí Edwards, George Nose was the willing assistant 01 the prosecution, able, certainly, and presumably ready, to point out every circumstance which would tend to corroborate his statement. Able counsel were employed to assist the state’s prosecutor, both in developing testimony and in trying the case. But to our minds the case went to the jury upon the testimony of
Upon this appeal the state seems to concede that George Nose was an accomplice; but it maintains that, in the first place, there was some corroboration; and that, secondly, no corroboration was necessary in law, but that the uncorroborated testimony of an accomplice in this, state goes to the jury like the testimony of any other witness, and that the court is bound by the verdict equally as though the witness were in no way complicated with the body of the crime. We have shown how we regard the matters which are claimed to be corroboration; that they are wholly immaterial. As to the other point, it is true that we have no statute requiring the corroboration of an accomplice, such as is found in a few of the states. It is also true that at common law conviction upon the unsupported testimony of an accomplice was upheld to the extent, at least, that, although the higher courts and law-writers laid it down that a trial court ought to advise the jury not to convict on such testimony, it was not reversible, even if they did not so advise. Yet the books are full of cases from courts not bound by any statute, both in England and America, where corroboration has been held necessary. 1 Amer. & Eng. Enc. Law, tit. “Accessory,” § 18, p. 74. Cases are rare, indeed, where, if the prosecutor has the assistance of a willing accomplice, no corroborative testimony can be produced. In practice it is almost invariably attempted, and juries are told, as in this case, that unless there is corroboration they should acquit. Perhaps the true view of the matter is that in many, if not in most cases, the evidence of an accomplice, uncorroborated in material matters, will not satisfy the honest judgment beyond a reasonable doubt, and that
We shall not allude at any length to the defense, which
Dissenting Opinion
(dissenting). — I dissent. I do not think this is a case that should be reversed upon the question of fact. The record discloses no error. There was some corroborating evidence to support the testimony of George Rose, and