101 Wash. 542 | Wash. | 1918
The verdict of the jury, convicting appellant of the crime of murder in the first degree, was returned and filed on April 3, 1917. A motion for a new trial upon the statutory grounds in the language of the statute was served and filed April 4, 1917. The motion was argued in the court below and by it denied on April 24, 1917, and on the same date, the judgment and sentence of the court on the verdict was filed and entered. On April 25, 1917, appellant served and filed his notice of appeal to this court, and no bond being required in a criminal case, the notice of appeal constituted his appeal to this court. Thereafter, on May 9, 1937, appellant served and filed a motion to set aside the order of April 24., 1917, denying his motion for new trial, and at the same time moved for an extension and enlargement of the time for submission of a motion for a new trial and reargument thereof and supported the same hy affidavits, which motion was, on May 14, 1917,
Appellant first complains of the giving of an instruction by the court, quoted in part as follows:
“Premeditated design is a mental operation of thinking upon an act before doing it or upon an inclination before carrying it out. ’ ’
This instruction was given in one stating all the elements and legal terms defining murder in the first degree. Almost the exact language of this instruction was approvéd in State v. Straub, 16 Wash. 111, 47 Pac. 227. The same definition of premeditation or premeditated design is given in 31 Cyc. 1162.
Complaint is also made of instruction No. 11 given by the court as follows:
“You are further instructed that malice aforethought or malice with premeditation, or premeditated malice, which is another way of putting it, in a case of this kind is where the intention to unlawfully take life is deliberately formed in the mind, and that determination meditated upon before the fatal shot is fired. There need be no fixed or definite length of time between the formation of the intention to kill and the killing, but there must be actual time for meditation between the formation of the intention to kill and the homicide. It is sufficient if the act of killing be preceded by a concurrence of will, deliberation and premeditation on the part of the slayer, though but a moment be taken in the formation of the design to kill and in the deliberation upon and meditation of such design before carrying it into effect. ’ ’
It is contended that this instruction is identical with one disapproved by this court in State v. Rutten, 13 Wash. 203, 43 Pac. 30, and similarly in State v.
“It is sufficient if the act of killing be preceded by a concurrence of will, deliberation and premeditation on the part of the slayer though but a moment be taken in the formation of the design to kill and in the deliberation upon and meditation of such design before carrying it into effect-,”
met with the approval of the-court in the Straub case, supra. It was not erroneous.
The next complaint is that the court instructed the jury:
“You are further instructed that, if the killing of one human being by another is proven beyond a reasonable doubt, the presumption of law is that it is murder in the second degree. ... If the defendant seeks to justify the acts in such case the burden is upon the defendant so to do.”
That such instruction states the law as declared in this state is settled by the following cases: State v. Payne, 10 Wash. 545, 39 Pac. 157; State v. Clark, 58 Wash. 128, 107 Pac. 1047; State v. Drummond, 70 Wash. 260, 126 Pac. 541; State v. Hawkins, 89 Wash. 449, 154 Pac. 827.
The next complaint is of an instruction given by the court which appellant says told the jury that the defense of appellant was an alibi, and further, in discussing the evidence of an alibi, says that the evidence of an alibi should account for the defendant during the whole period in which the jury should find that the offense charged was committed. It is asserted that the instruction was prejudicial to the appellant beeause the defense was not necessarily an alibi as a matter of fact,
Appellant requested the court to give seventeen instructions, and argues that two of the requested instructions should have been given and that the court erred in not giving them. One of these, the sixth, was a request upon circumstantial evidence. The eourt gave a very elaborate and accurate instruction upon the subject of circumstantial evidence, its weight and value in criminal cases, which has been approved in 2 Blashfield’s Instructions to Juries, §§ 2414, 2454. The instruction was, in fact, more instructive to the jury than that offered by appellant.
The next assertion is that requested instruction No. 8 should have been given, as follows:
“A part of the evidence of the state consists of certain declarations or statements alleged to have been made by”the defendant and testified to by witnesses in this case; the court instructs you that the law is that*547 such evidence should be received with great caution as the liability to mistake on the part of the witnesses may occur in the repetition of language, the understanding of what was said, or the speaker may not have conveyed fully to the witness the idea intended by the language used, therefore, for such reasons such testimony is to be received by you with great caution and weighed with great care. ’ ’
No authorities are cited to sustain the propriety of the foregoing instruction. The court did, by other instructions, instruct generally upon the question of the credibility of witnesses, the manner of judging testimony, and the duty to harmonize same, and without singling out any class of witnesses or line of testimony, and instructed the jury upon that question in a manner generally approved.
The jury were instructed that they were the sole and exclusive judges of the credibility of the witnesses who testified; that they should take into consideration the interest of the witnesses who testified in the result of the case, if any such interest was proven, their conduct and demeanor while testifying, their apparent fairness or bias, if any such appeared, their opportunity for seeing or knowing the things about which they testified, the reasonableness or unreasonableness of the story told by them, and all the evidence and facts and circumstances proven in the case and tending to corroborate or contradict such witnesses, if any such appear; that they were not bound to believe anything to be a fact because a witness had stated it to be so, if they believed from all the evidence that such witness was mistaken or knowingly testified falsely. The latter part of the instruction given, in a general way and without particularizing any testimony or calling attention to azzv particular witnesses, covered the ground requested by appellant.
Furthermore, the instruction requested referred to declarations or statements made by the defendant and testified to by witnesses. The instruction stated the law with reference to admissions. Admissions are distinguishable from confessions. Admissions are concessions or voluntary acknowledgments made by a party of the existence or truth of certain facts. Bouvier’s Law Dictionary. Recognition as fact or truth, acknowledgment, concession; also the expression in which such assent is conveyed. Anderson’s Law Dictionary. An admission is a statement, oral or written, suggesting any inference as to any fact in issue relative, or deemed to be relative, to any such fact, Stephens, Digest of Evidence (4th ed.), § 39.
The evidence of witnesses as to statements of appellant consisted of detailed accounts of the whereabouts of appellant on the day in question, his acts, an account of a quarrel with the deceased, her whereabouts on that day, and facts from which the jury could, with other circumstances shown by evidence as to the manner of the killing of the deceased, infer a motive on the part of the appellant to kill the deceased, viz., jealousy and revenge. However, there was nothing in the way of direct admissions on the part of appellant in the statements testified to of any connection on his part with the crime itself, but they were rather in the nature of denials and avoidance of admissions of any connection with the crime. The statements did, however, as said, show his relations with the woman and, circumstantially, a motive for the crime. These were to be
The next ground of error is the denial of the motion for a new trial. This is based largely upon the giving of the instruction heretofore discussed, to the effect that, if the killing of one human being by another is proven beyond a reasonable doubt, the presumption of law is that it is murder in the second degree, and if the defendant seeks to justify the acts in such a case,
There is nothing to support the contention of appellant that “if the evidence points to Duncan as the guilty party, equally as strong is it that, if he killed her, it was the result of a sudden and unexpected quarrel, done in the heat of passion and under extreme provoca-. tion. • She was the aggressor. ’ ’
The last error claimed is that the court erred in denying the motion to set aside the order denying the new trial and to resubmit the same. Section 2181, Rem. Code, provides that an application for a new trial in a criminal case must be made before judgment, providing the grounds therefor. Section 402, Rem. Code, provides that the party moving for a new trial must move therefor within two days after the verdict of the jury, or within such further time as the court within which the action is pending or the judgment thereof may allow. Appellant filed his motion within two days and had it disposed of, and the judgment had been entered when the motion to set aside the former order and resubmit the same was filed. The court had then lost jurisdiction of the matter, and it had further lost jurisdiction by reason of the fact that appellant had served and filed his notice of appeal to this court. The court below had no jurisdiction to pass upon the motion to
There being no errors found in the record, and which we can consider, justifying a reversal, the judgment is affirmed.
Ellis, C. J., Mount, and Fullerton, JJ., concur.