24 Wash. 514 | Wash. | 1901
The information filed in this ease charged appellant with murder in the first degree. Upon the trial he v/as convicted of murder in the first degree, and judgment was pronounced in accordance with the verdict. From such judgment this appeal is taken.
The first assignment of error is that the court erred in arraigning appellant and compelling him to enter his plea before he could procure counsel, and without appointing counsel for him. The record shows that the accused was arraigned and caused to plead before counsel were appointed for him. The accused killed his wife by shooting her several times with a revolver in a restaurant in the city of Tacoma. The shooting occurred February 10, 1900. The accused was arrested, arraigned, and pleaded, on Tuesday, February 13th, without counsel. There is no substance in the assignment of error, however, for after counsel were appointed on February 20th, they were allowed to withdraw the plea of not guilty, and a demurrer was interposed to the information, and motion to quash the information was also filed on the 21st of February; so that the error, if any, arising from the action of the court in causing defendant to plead before counsel were appointed, was remedied by the subsequent action of the court in allowing the plea to be withdrawn.
The second assignment is that the court erred in overruling the appellant’s demurrer to the information. Outside of the fact that the record does not contain the demurrer, and no exception appears to the order of the court overruling the demurrer, we have examined the information, and think it is unassailable.
The third assignment is that the court erred in denying appellant’s motion to quash the information, for the reason that neither the information nor record shows the neees
“Tbe ground upon which tbe information is attacked is tbat it does not affirmatively appear upon the face tber.eof tbat there was no grand jury in session, nor that tbe defendant bad been committed by a magistrate on said charge. ÜSTeither of these objections can avail appellant. It is true tbat.certain facts must exist before tbe prosecuting attorney gets jurisdiction of tbe case in such a manner as to be authorized to file an information against tbe defendant, but tbe statute nowhere makes it necessary tbat tbe existence or non-existence of such facts should be made to appear upon tbe face of tbe information.”
And such has been tbe uniform ruling .of this court ever since.
Tbe fifth assignment is tbat tbe court erred in denying appellant’s motion for a continuance. Very strong affidavits were made by tbe attorneys for tbe defense in support of their motion for a continuance in this case. This motion was overruled by tbe lower court, and it is earnestly contended tbat there was an abuse of discretion of tbe court in denying tbe motion. We have examined with care tbe affidavits on file, but when taken in connection with tbe whole record, it appearing tbat several of tbe witnesses, whom it is alleged in tbe affidavit tbe defendant
Tbe next contention is that tbe court erred in denying appellant’s challenge for cause to juror J. J. Lemon. In answer to tbe question by Mr. Davis: “Would you require any greater evidence to convict a man for murder in tbe first degree where tbe penalty is death than you would to convict him where tbe penalty is imprisonment in tbe penitentiary?” tbe juror answered: “Ho, sir;” whereupon tbe juror was challenged for bias and implied bias. Tbe court remarked, “I know of only one rule, and that is, beyond a reasonable doubt;” asking tbe following question of tbe juror: “You would obey tbe instruction of tbe court as to tbe law in tbe case, wouldn’t
The denying of the appellant’s challenge to juror Oleson is the sixth assignment of error. The examination- of this juror is too long, to reproduce in this opinion, but in answer to the question, “Did the account you read in the Mews at the time tend to fix an impression in your mind as to the guilt or innocence of the defendant ?” the answer was, “No, sir.” Question: “Have you talked with any-“Have you ever expressed an opinion as to. the merits of body about the case?” Answer: “Mo, sir..” Question: the case?” Answer: “Mo, sir.” Question: “Have you any opinion?” “Mo, sir.” This was the first testimony of the juror in answer to plain questions, and it will be noted that he stated that the account that he read had not tended to fix either an opinion or an impression upon his mind, and that he had no opinion at the time of the examination. Further on, under the examination of Mr. Davis, counsel for defense, after the witness had stated that he had never heard any one speak anything about this case, the following occurred:
*521 “Question. You read an account of it, did you?
Answer. Yes, sir; I read it in the paper; in the Yews or Ledger.
Q. Well, at the time you read the account did you have any impression as to whether or not a woman had been killed ?
A. Yo, sir.
Q. Did you have any impression as to who did it ?
A. Yo, sir; it was simply a man’s name in the paper.
Q. You thought that he was the one that did it ?
A. That is what I thoug’ht.
Q. You thought that some one had killed a woman down here on Tenth street?
A. Yes, sir.
Q. Yow, you believed from that the defendant, whose name was in the pápers, was the man that did it, didn’t-you?
A. Yes, sir.
Q. And there has been nothing come up to change your mind since then, has there?
A. Yo, sir.
Q. You are still of that opinion, are you?
A. Yes, sir.
Q. Yow, that opinion is still formed in your mind, is it not ?
A. Yes, sir.
Q. And it would take considerable evidence to change your mind, would it not?
A. Yes, sir.
Q. You believe, do you, that the defendant should prove to this court and jury that he is not guilty of that charge ?
A. Yo,'sir.
Q. What is your opinion in regard to that ?
The Court: You need not answer that. Objection. Whereupon the juror was challenged.”
In addition to the fact that the further examination elicited the statement that the juror did not know who it was that was charged with killing the woman, and did not know whether the newspaper account was true or not;
There is another contention, viz., that this juror was disqualified by reason of his relations with the deputy prosecuting attorney, Mr. Bates. The examination in that regard is as follows:
“Q. (By Mr. Davis, after some preliminary questions.) Are you acquainted with either of the attorneys representing the state ?
A. Yes, sir.
Q. Are you acquainted with Mr. Bates ?
*523 A. Yes, sir,
Q. Have you done any business with Mr. Bates ?
A. Yes, sir.
Q. He is your attorney, is he?
A. Ho, sir.
Q. Buy groceries of you?
A. Yes, sir.
Q. How long have you been doing business with Mr. Bates ?
A. More or less for the last five years.
Q. And right up to the present time?
A. Yes, sir.
Q. You consider him one of your customers in your business ?
A. Yes, sir.”
And further on, after an examination on the merits of the case:
“Q. Mr. Oleson, you are on friendly terms with Mr. Bates, are you not ?
A. Ho, sir — that is, Mr. Bates come in the store and buy the groceries, and I know Mr. Bates by that, and he do the business and pay his bills like a gentleman; that is all I know.
Q. You are on friendly terms with him, are you not ? A. I talk with him only on business, and so on.
Q. Has he been your attorney in any case ?
A. Ho, sir.
Q. In case you had litigation of any importance would you consult him in regard to it ?
A. Yes, sir, I would; but I have never had any litigation in court.
Q. Then your regard for him is such that if you did have a case that you would consult him. in regard to it ?
A. Yes, sir.
Q. And retain him as your attorney ?
A. Yes, sir.”
(Here a challenge was interposed.)
“Q. (By the Court) Is Mr. Bates now your attorney ? A. Ho, sir.
*524 Q. Has lie ever been?
A. Ho, sir.
Q. You haven’t any litigation in view, have you?
A. Ho, sir.
Q. You haven’t any matters that you contemplate submitting to a counsel ?
A. Ho, sir.”
(Challenge denied.)
“Q. (By Mr. Davis) How, in considering this case, Mr. Oleson, as a juror, you would consider the opinion of Mr. Bates and his judgment and argument of this case as about correct, wouldn’t you?
A. Ho, sir.
Q. You wouldn’t be governed then so much by his opinion and his argument in this case as you would by some other attorney ?
A. Of course, I will do that what is the same way— the same as any attorney. I don’t give an opinion before I hear the case from both sides, and what the tale is and what my opinion is about it. I don’t care which attorney comes up and talks — of course, I can’t say that now.”
There seems to us to be no real merit in this contention. Sec. 4984, Bal. Code, provides that a challenge for implied bias may be taken when it appears that the juror and the attorney are standing in the relation of guardian and ward or attorney and client, etc. But it certainly cannot be the law that a juror is disqualified because he happens to have a good opinion of an attorney, either with reference to his ability as a lawyer or his reputation for paying his debts promptly. If this standard were adopted, it would be almost impossible to obtain an unbiased jury in a community where a lawyer with a good reputation for legal ability and business integrity was engaged in the trial of the cause.
The ninth assignment is that the court erred in overruling aipipellant’s. objections to the qualifications and competency of witness Dr. T. B. Smith to qualify as an
It is also insisted that the court committed error in relation to a remark made concerning the hypothetical question which had been propounded by counsel for the state. The objection to the question was that it was not a hypothetical question, and was not based upon the evidence in
It is also contended that the court erred in overruling the appellant’s motion to take from the consideration of the jury the question of the guilt or innocence of the appellant as far as murder in the first degree was concerned, upon the ground that the- state had not shown by any competent testimony the facts necessary to exist in order to constitute murder in the first degree. We cannot agree with counsel for defense in .this contention. If the testimony of eye-witnesses to the crime is to be believed,- — -and it was the province of the jury to pass upon its credibility, —it was ample to show malice, premeditation, and deliberation on the part of the defendant. We have examined the instructions given by the court in this case, and are not able to find any error in such instructions. They stated the law of the cáse and were full and fair, and no other instructions were necessary to protect the rights of the defendant.
Assignments fifteen and sixteen relate to alleged errors of the prosecuting attorney in his closing argument to the jury. In, the closing argument the state’s attorney made the following statement to the jury: '
“Mr. Davis, the attorney for the defendant, said in his opening statement as to what they would prove, that the
Attorneys for the defendant then objected to the statement of the state’s attorney, and asked the court to instruct the jury that they should not consider the same, and to instruct the state’s attorney against making such statements ; but the court stated that such statements were legitimate argument, and refused to comply with the request of defendant’s counsel. The state’s attorney then proceeded and said: “They said in their opening statement that they would prove that the defendant drank beno-beno in the Philippines and that it made him crazy, but not one word has been given in evidence of that fact,” — to which defendant also excepted. The record shows that the attorney for defense had in his opening statement made the remarks attributed to him by the state’s attorney in his closing argument, and we think with the court that the statements made by the state’s attorney were legitimate argument. The assertion had been made by the defeudant’s attorney. If it had not been called to the attention of the jury in the closing argument that these assertions had not been substantiated by proof, the bare statement of the attorney might have left the impression in the minds of the jurors that proof to that effect had been made. It was certainly the right of the state’s attorney to clear the minds of the jurors of any false impressions that may have been lodged there by reason of statements made by counsel in the opening statement, which had not been proven. Further in the argument the state’s attorney said: “You have seen the defendant here in the court -room from day to day. You can see that he is sane, and you know it.” And in the closing remarks he said: “It has been commonly known in this county that criminals were not
It is also claimed that the record does not show that the bailiff wyas sworn to take charg’e of the jury, as required in capital cases. But the record does show that the jury were placed in the custody of sworn bailiffs to deliberate upon their verdict, and the statement in the record that the jury retired in charge of a sworn bailiff is sufficient to show that the bailiff was sworn. State v. Barkuloo, 18 Wash. 141 (51 Pac. 350).
Heither do we think there is any merit in the contention that there was misconduct on the part of the bailiff in allowing the jury to separate, and taking them from
FTeither do we think there is anything in the motion for a new trial on the ground of newly discovered evidence.
The defendant had a fair trial, the law was properly administered by the court, his rights were guarded by the instructions, there was no error in the admission or rejection of testimony, the jury have 'found the facts against him, and he must abide by the verdict.
The judgment is affirmed.
Peavis, C. J., and Fullerton and Anders, JJ"., concur.