35 Wash. 326 | Wash. | 1904
The defendant was convicted of burglary upon the trial of an information of which the following, omitting formal parts, is a copy:
“That the said defendant, Duke Deatherage, on the 4th day of [November, 1903, in the county of Spokane*328 and state of Washington, then and there being, did then and there wilfully, unlawfully, feloniously and burglariously enter in the night time a certain stable there situate, the property of, and belonging to, C. O. Wilson and W. M. Moore, copartners doing business as the Klondike Stables, and then and there used by them as such, in which certain goods and valuable property of the said C. 0. Wilson and W. M. Moore, copartners as aforesaid, was then and there kept for use, with intent then and there unlawfully, wilfully, and feloniously, to steal, take and carry away the said goods and valuable property of the said C. O. Wilson and W. M. Moore, copartners as aforesaid, then and there kept for use as aforesaid.”
A motion for a new trial was denied, and the defendant has appealed from the judgment.
The errors assigned and relied on by the appellant for a reversal of the judgment call in question the ruling of the court in sustaining objections to certain questions propounded to witnesses, in refusing to strike from the records the testimony of the witness MePhee, in giving certain instructions to the jury, and in denying appellant’s motion for a new trial. At the trial the state called one Kisher, who testified, in substance
This witness further testified, that fie then telephoned tfie police station and reported the matter to tfie police, and two policemen came up to tfie bam; that fie and tfie policemen looked for the saddles, and that fie found them and the bridle, about one hundred and fifty feet from the bam, in a wagon which was in tfie alley. On cross-examination tfie witness stated that he did not enter the Klondike stables, after tfie saddles were taken, until the next day, and that fie reported tfie taking of tfie saddles that night to tfie police by “phone.” Counsel for tfie defendant then asked tfie witness tfie following questions: “Q. Did you report to Mr. Wilson or Mr. Moore tfie taking of tfie saddles, that night ? Ans. I did not. Q. Why did you not report to Wilson or Moore tfie taking of tfie saddles that night?” This question was objected to by counsel for tfie state on tfie ground that it was immaterial. Tfie objection was sustained by tfie court, and the defendant, by fiis counsel, excepted.
It is claimed that this ruling of tfie court was erroneous and prejudicial to the appellant, and it is insisted that tfie appellant fiad tfie right to know why tfie witness did not inform tfie proprietors of tfie Klondike stables that a burglary had been committed; and it is, in effect, argued in support of (fiis contention that, if the witness fiad no good reason for not promptly reporting tfie burglary to the proprietors of tfie stables, counsel for the appellant could have argued to tfie jury that, as a
It is next insisted that the trial court erred in permitting the witness McPhee, over appellant’s objection, to answer the question, “Was defendant under arrest?” and in refusing to strike from the record the statement of the witness that the defendant was under arrest, when he saw him at Eeardon, Washington, at about 10 o’clock in the forenoon of November 4, 1903. These two assignments of error are based upon the proposition that an arrest may be proved in two ways only; first, by a person who made the arrest or who saw it made; and, second, by a certified copy of a public record showing the arrest. But conceding, without deciding, that this
Ror do we think the court erred in refusing to strike from the record the entire testimony of the witness Mc-Phee. It is admitted that the primary purpose of the testimony of this witness was to show that appellant had precipitously fled from the scene of the crime with which
The fifth assignment of error is that the court erred in instructing the jury as follows:
*333 “While the statute of this state provides that a person charged with crime may testify in his own behalf, he is under no obligation to do so, and the statute expressly makes it the duty of the court to instruct the jury that no inference of guilt shall arise against the accused if the accused shall fail or refuse in testify as a witness in his own behalf, and the court so instructs the jury in this case.”
It is conceded that this charge of the court complies with the letter of the statute, hut it is contended on behalf of appellant that it is not within the spirit of the law; and it is urged that the appellant was entitled to an unqualified instruction, without reference to any statute whatever; or, in other words, that the appellant was prejudiced by the statement to the jury that “the statute expressly makes it the duty of the court to instruct the jury that no inference of guilt shall arise against the accused if the accused shall fail or refuse to testify as a witness in his own behalf.” It is stated, in effect, by counsel for appellant, that the judge, by this instruction, virtually told the jury that “the law requires me to so instruct you, and for that reason only I do it.” This instruction is clearly in accordance with the law, and the statement of the court that it was made its duty, by the statute, to so instruct the jury, did not, in our judgment, abridge or injuriously affect any right of the appellant. Where the jury is properly directed as to the law upon a particular question, the language used by the court is a matter of no special importance. In State v. Mitchell, 32 Wash. 64, 72 Pac. 707, this court ruled that an instruction which substantially complies with the provisions of the statute is sufficient, and we think such is the general rule. The instruction now under consideration is not only substantially but literally in the language of
Upon the question of flight the court charged the ] urjas follows:
“If you find that burglary was committed as charged in the information, evidence of flight of the accused may be considered in determining the question as to whether .he was the one who committed the act.”
It is contended by appellant that this instruction is erroneous for the reasons, (1) that there is no evidence of the flight of the appellant, and no evidence of any attempt to escape from the officers; (2) that it comments upon the facts in the case; and (3) that this is not a proper case for such an instruction, and that the instruction fails to state the law correctly. What we have said in discussing .appellant’s fourth assignment of error disposes of the proposition that there was no evidence of flight of appel-' lant, and therefore a further consideration of the question of flight is unnecessary. Uor do we think that this instruction is violative of section 16 of art. 4 of the constitution, which provides that judges shall not charge juries with respect to matters of fact, or comment thereon; The learned judge made no statement to the jury as to the evidence which had been introduced upon the question of flight. ISTeither did he make any remarks indicating his own opinion upon that question or suggesting the conclusion which should be arrived at by the jury. In short, he did not “comment thereon.”
The contention that this instruction, does not state the law is based upon the proposition, if we understand appellant’s argument, that the court should have gone further and informed the jury that the circumstances explaining ■or excusing flight should be taken into- consideration, and
“The court instructs the jury that flight raises the presumption of guilt, and if you believe from the evidence that the defendant, after having shot and killed Minnick, as charged in the indictment, fled the country and tried to avoid arrest and trial, you may take that fact into consideration in determining his guilt or innocence.”
The instruction given in this case does not state that guilt may be inferred from flight, or even, as was said in the Missouri case, that flight raises the presumption of guilt. It simply says to the jury that evidence of flight may be considered in determining whether the accused was the one who committed the offense, and the court committed no error in so charging the jury.
Lastly, it is contended by appellant that the court erred in refusing to grant a new trial on the ground that the verdict was contrary to the evidence. This contention is absolutely untenable. We have read and carefully considered all the evidence contained in the record, and are thoroughly satisfied that it justifies the verdict of the jury.
“On the evening of November 3d, about nine or ten o’clock, I called at the Klondike stables and defendant and I went to town and had several drinks together, among other places, at the Judge saloon. About 12 o’clock or thereafter, the defendant left me, stating he was going back to the barn to sleep. After that time I went to the barn, walked into the door, took these saddles from the bam and carried them away. Deatherage was not with me. After I had taken the saddles out, I went upstairs to the place where Deatherage was asleep, and told him what I had done. He remonstrated with me, and said he did not want to have anything to do with it, and if the saddles were taken he would be accused of it.”
Of course, if this testimony was true, appellant was entitled to a new trial. But evidently the jury and the judge, having observed the demeanor of this witness and heard his testimony, disbelieved the statements above set forth. And an examination of his testimony as a whole, even as it appears in the record, is sufficient to convince any unbiased mind that it is wholly unworthy of belief. Although he testified positively and without hesitation, in his examination in chief, that he took the saddles from the bam and afterwards went upstairs where appellant was sleeping and told him what he had done, and that appellant remonstrated with him, he was utterly unable to recount the surrounding circumstances, or to give a more detailed account of the transaction. Dor instance, the following are questions asked this witness on cross-examination, and his answers thereto:
“Q. How many saddles did you take? A. Two. Q. Did you take anything else besides the saddles ? A. No. Q. Are you sure about that ? A. Tes. Q. From where did you take the saddles ? A. I got them in the*337 stable. Q. Did you take the saddles from the same identical place in the stable; were they hanging together at the time you took them ? A. Yes. Q. Where Was Deatherage at this time? A. Upstairs. Q. Did you go upstairs thereafter? A. Yes. Q. Iiow did you get upstairs — by stairs or by ladder ? A. I don’t know. Q. Where was Deatherage sleeping — on a bed or on the floor ? A. I can’t tell you. Q. Why can’t you tell ? A. I don’t know. Q. Who else, or was there any one else in the room with Deatherage at that time? A. I don’t know. Q. How could you see him — was there a light in the room ? A. I don’t know. Q. Describe the room in which Deatherage slept A. I cannot. Where did you put the saddles after taking them? A. I don’t remember. Q. Which way did you go with the saddles after leaving the stable — north, south, east or west? A. I don’t remember. Q. "Where have you been during the last two or three weeks? A. I have been confined in the county jail. Q. In what cell were you confined in the county jail with reference to the defendant Deatherage ? A. I was confined in the same cell. Q. Dor how long a time were you confined in the same cell with Deatherage ? A. Dor several weeks. Q. Have you not been heretofore convicted of felony in the county of Whitman, State of Washington, and served sentence by reason thereof? A. Yes sir.”
It seems plain to us that the testimony of this witness, Ingalls, taken all together, bears upon its face the brand of untruthfulness, and that the jury was fully justified in regarding it as a mere fabrication. But even if In-galls’ testimony were considered as worthy of serious consideration, it was squarely contradicted by other evidence, which the jury had the right to believe, and did believe, and which was clearly sufficient to sustain their verdict. Under such circumstances this court has uniformly declined to award a new trial on the ground of in
We have discovered no error in the record, and the judgment is, therefore, • affirmed.
Fullerton, C. J., and Hadley, Mount, and Dunbar, J J., concur.