4 Wash. 204 | Wash. | 1892
Lead Opinion
The opinion of the court was delivered by
This was the second trial of the appellant for the crime of murder. The first trial was reviewed by this court, and is reported in 2 Wash. 358.
The record shows that after the former judgment of conviction was reversed and a new trial granted, and on the 17th day of July, 1891, the grand jury of King county presented a second indictment against the appellant, which was identical in substance with the one sustained by the decision of this court, with the exception that, whereas, the name of the person killed was in the former indictment laid as John Scherbring, in the latter it was laid as Julius Scherbring. On the 12th day of September, 1891, appellant was arraigned upon the new indictment, and without any other plea or objection entered his plea of not guilty, and the cause was set for trial on September 21st. The plea of not guilty was not, according to the record, at any time thereafter withdrawn. But on September 16th counsel for appellant filed in the cause a lengthy document, the theory of which is not clearly apparent, and which we shall not characterize by any descriptive term. The superior court ruled upon it as\a motion to “dismiss the in
“It appears to us to be the settled rule of law, that the pendency of indictment is no good plea in abatement to another indictment for the same cause. Whenever either of them — and it is immaterial which — is tried, and a judgment rendered on it, such judgmentwill afford a good plea in bar to the other, either of autrefois convict or autrefois acquit. But where it is found that there is some mistake in an indictment, as a wrong name or addition, or the like, and the grand jury can be a,gain appealed to, as there can be no amendment of an indictment by the court, the proper course is, for the grand jury to return a new indictment, avoiding the defects of the first. And it is no good ground of abatement, that the former has not been actually discontinued, when the latter is returned.”
No reason appears why this may not occur as well after
The first exception relied upon relates to the contradiction of the witness Longstaff. This witness testified at the first trial to having seen the accused at a certain place on Madison street, Seattle, on the evening of July 15th, the day after the alleged homicide. At this trial he stated ' that at the place in question he spoke to appellant and “told him he had a pretty nice ring there,” whereupon “he put his hand that way under the work bench.” On cross examination he was questioned whether he had testified at the former trial to having spoken to appellant about the ring, and he affirmed most positively that he had. Appellant’s counsel maintained that he had not so testified, and sought to contradict him in that particular. There was some materiality in the matter, as the question of the identity of the person spoken to was in issue, the appellant having been arrested about noon of the following day, some twenty miles away on the opposite side of the city. The defense, to contradict Longstaff, produced the witness Bowman, who took down the testimony at the former trial in short hand, and furnished the same in long hand for the statement on the first appeal. He identified a duplicate of his long hand notes, and later in the progress of the case counsel proposed to read from the duplicate the former testimony of Longstaff. But the state’s objection to the reading was sustained by the court, one of the grounds being the incompetency of the evidence. We do not think appellant’s proposition that he should have been allowed to read the long hand notes can be sustained. He was seeking to prove a negative, viz., that Longstaff had not testified on the first trial that he had spoken to appellant about the ring on his finger. Bowman was present and competent to testify as to that. He could have been asked whether Longstaff had testified as he claimed; and if
The next exception relates to the testimony of a witness, Murphy, ex-chief of police. Scherbring was in his charge during the night after he was shot and until he was sent to the hospital the next day. He lay upon a cot vibrating between a drowsy sleep and a more or less wakeful condition, but probably at no time much more than barely sensible of his condition. The. defense called Murphy to testify what Scherbring had said to him under these circumstances, on the morning pf the 15th, ip response to repeated questions as to who had shot him. The state objected strenuously on the ground that np such statements could be admitted as res gestee, and therefore not at all. But the court allowed ,the witness to proceed, which he did as follows:
“I asked him first the question how this came about, or who done it, and he was loth to tell, and I had to wake him up two or three times; he was drowsy, and I asked him how long it had been done, and fye said ‘last night.’ Says I,‘who done it?’ Says he, T don’t know.’ ‘Well,’says I, ‘tell me,’ but he went to sleep. I woke him up and*211 tried; I talked to him for a while, and says I, ‘did you see the doctor.?’ And he says, ‘yes, the doctor says I will be all right.’ I tried .to talk to him more; and I told him ‘the doctor lied, you will die — tell me what you know.’ ‘Well,’ says he, T don’t know nothing about it.’ I stayed with him for quite a while to bring out what I could, and finally I asked who was with him through the night, and he said ‘Freidriqhs;’ says he, ‘my best friend was with me.’ That was pretty near all I could get out of him; he was drowsy and was falling back every little while, and seemed to be in pain.”
The state in cross examining the witness, asked him:
“I will ask you if you heard him when he was asleep there mumbling with his hands, and saying, ‘Freidrich,don’t! Freidrich, don’t!’ in his sleep?”
After objection, which was overruled, the witness answered that he did not remember anything particular about that. Counsel criticises the court’s action in this matter, but, it seems to us, without just cause. The testimony of Murphy was clearly not competent. It was not offered as part of the res gestee, but as an offset to certain testimony introduced by the state. That testimony consisted of statements made by certain witnesses to the effect that on the day of his arrest (July 16th) appellant, when told of the charge against him strongly denied it, and demanded of the sheriff that he be taken to the hospital where Scherbring was, saying at the same time that Scherbring was his best friend and would exonerate him on sight. Being taken into the presence of the wounded man the latter identified appellant and directly charged him with having been the person who shot him. Appellant immediately exclaimed, “Oh, Scherbring! how do you say such a thing?” and denied having fired the shot or having anything to do with it. The purpose of this testimony was to prove an admission by silence or conduct, and nothing more. It may have had great weight with the jury, and they may have, perhaps,
The court charged the jury at length, and with such fairness to the accused that no exception was taken to any portion of the charge given by him, and no error in giving the charge is now suggested. But five exceptions to refusals to charge are presented. The first one embraced a series of propositions, defining and explaining circumstantial evidence, in set, scientific legal terms drawn from text writers, to the giving of which there could have been no objection, except that it was not couched in the plain language which ought, if possible, to be employed in a charge to a jurv. The court in its charge covered every material point, in better language because plainer English ; and the only ground of complaint is that the defendant had a right to have his propositions of law submitted to the jury in his own language, if they were correct in principle and applicable to the case. People v. Williams, 17 Cal. 142, and State v. Evans, 33 W. Va. 417, are relied on to sustain this point. The former case based a reversal on the fact that the court did not say to the jury that his refusal to give the charge requested was because an equivalent one had been given before. This decision must pre-suppose that the requests to charge were read in
Second request: “Iñ criminal cases, and especially in cases of homicide, the státements made by the' defendant are of the utmost and essential importance.”
It would have been improper for the court to thus'pointedly call attention to the defendant. The proposition is taken from Burrell, Circ. Ev. 187, where it is credited to' Starkie on Evidence; but it was made by Starkie when the law did not permit a defendant to be’ a witness; and could' only apply to such of his statements as could be introduced under the' general rules of evidence, as, for example,- rés gestee, or admissions. As the defendant herd'Was a witness,-the charge requested would have called the attention of the' jury to him', and given his testimony an importance, As’ compared with that of other witnesses, to Which it was not
Third request: “The statements made by the injured party days or hours after the receipt of the injury, are not, in and of themselves, competent evidence against a person accused of murder. They are hearsay, and wholly incompetent and inadmissible; but when the statements are made by the injured party to the defendant, or in his presence or hearing, and the defendant remained silent under the accusation, such silence is a tacit admission of the truth of the accusation. It is the acts, words and conduct of the accused that are evidence, and not the statements of the deceased. (And, therefore, if the injured party prior to his death is confronted with the defendant, and accuse him of having committed the act, and the defendant immediately denies it, the statements of the deceased are to be wholly disregarded.)”
The court gave the first part of this request, and refused the portion within brackets. The error by the omission complained óf has no foundation. The court had already told the jury that the statement of (he injured party was incompetent and inadmissible, but that the conduct of the defendant was a proper subject' for their considération. The omitted portion would have added nothing to the force óf what had been said. It must be remembered that whatever influence the interview between Scherbring and the defendant had was brought about by the latter himself. He demanded that he be taken to the hospital, and insisted upon the meeting. . He went there to bé exonerated, and must be satisfied to have the jury consider what actually took place.
Fourth request:' This request called the attention of the jury to the personal appearance and démeanor óf the
Eifth request: “If you believe that any witness has sworn falsely in this case in regard to any matter material to the issue, you should distrust all of his evidence; and if you believe the witness has willfully sworn falsely in a matter material to the issues in this case, you are warranted in disregarding his testimony altogether.”
The first proposition is not the law; the jury must believe the testimony to have been willfully false. The second one the court gave, in substance, with the addition, “except so far as it may be corroborated by other evidence in the case.” This is a frequent qualification, and is not, we think, objectionable. In Brown v. Hannibal, etc., Railroad Co., 66 Mo. 588, which is cited by appellant against the use of the qualifying phrase, the lower court had said that if a witness had willfully sworn falsely, all his evidence might be disregarded “unless such as to some part” should be corroborated, and the supreme court considered that the language thus used told the jury to give credit to all the testimony of the perjured witness, if he was found corroborated as to part.. This was a very different thing from crediting such part of his testimony as was corrobo
We find no error in the record as presented, and have now to pass upon the last objection, viz., that the evidence did not justify the verdict.
For the reason that we shall make a final disposition of this case at this time, we shall go into a more extensive examination of the facts than we did at the hearing of the former appeal. The case of the State showed nothing of the previous relations of the appellant and the deceased Scherbring, but commenced abruptly at a small saloon near the southerly end of Grant street bridge, Seattle, at about sundown of July 14,1887. The two men arrived there, walking from Seattle, and had two or three glasses of beer, in which they were joined by some other persons. After drinking once or twice, they went further along the bridge and back again, sat down in front of the saloon a few minutes, had more beer, and then left together to return to the city. During all the time they were about the saloon their appearance was friendly, and therewas no suggestion that either of them was any the worse for his drinking. No person testified who saw them after leaving the saloon, except those who looked after them from the saloon, and their observation was merely casual. From that on, the state’s evidence lost sight of the appellant until the afternoon of July 15th, when three witnesses testified to having seen him on Madison street, in the suburbs of Seattle, and two of them talked with him. He asked for and was given something to eat, and said he had just come from California on the steamer. The next time he appeared was when he was arrested by officers at Slaughter, in the forenoon of the 16th, as he was walking away from Seattle, along the railroad track, having covered some twenty miles since the previous evening, if it was true that he was then on Madison street.
As far as the testimony revealed he did not say to any one that Freidrich was the man until the afternoon of the 16th, when they were brought face to face at Providence hospital. The officers pursued Freidrich solely upon the information that the two men had been last seen together on the bridge. As he came walking on the railroad track toward Slaughter, on the morning of the 16th, the officer who made the arrest spoke to and entered into conversation with him. He first said he was going to Puyallup, after-wards that he was going to Tacoma. He had some friends over there, and walked in preference to taking a train, as he had plenty of time, and liked the scenery. He said he was looking out for a location to start a shoe shop. The officer pretended to have been away from Seattle some time, and asked him the news, but he replied that he knew of none. He seemed anxious to proceed on his way, but yielded to an invitation to stop for dinner, on the promise of company down the road. The officer told him that he had seen in the morning paper that a murder had been committed in Seattle, but Freidrich had not heard of it. Afterwards he said: “ Yes, the man who was killed was a good friend of mine;” and being led on, he stated that they got into a boat in the morning and had a few bottles of beer with them, and rowed over across the sound or out into the bay, and were out there quité a while, and came back to his shop, and from there they went to the head of the bay to a saloon, where they stayed until along in the evening, when he told his friend Scherbring that he had to go into town to attend a meeting of the Turnverein, and wanted him to go with him; but the latter réfused and
Freidrich in his defense showed that he and Scherbring had been fast friends for two years; that they had spent the day together because Scherbring was going away, Freidrich closing his shoe shop for that purpose; that they took supper together; that he did propose attending a singing
In this case, when we have said that it is proven beyond a reasonable doubt that Freidrich did the shooting and fled with a design of escaping from his guilty knowledge that he had committed a crime, all is said that can be said of the state’s case as revealed by the evidence. It is a case singularly without the proof of extrinsic circumstances tending to show what could have been the inducement in his mind to shoot down the man whom he called, and who called him, his best friend. Going beyond the pale of the legitimate evidence in the case even and taking Scherbring’s declaration that he felt a hand in his pocket, yet there is not a word to show that he was robbed, or lost any money, papers or other valuables. Then again, Scherbring’s mysterious reticence and unwillingness to say that Freidrich had shot him, when if the state’s theory be accepted it was a case of merciless assassination, makes it difficult of belief that such was really the crime. The feeling is irresistible that after two trials of the appellant the whole truth of the case has not been made to appear. There may have been a quarrel, with no one knows what attendant circumstances of aggression or provocation upon one side or the other. The homicide as proven stands as an unlawful killing with a deadly weapon, with no circumstances proven by the state or the defense to qualify the act. From the character of the weapon malice is implied and the common law crime of murder is complete; 2 Thompson on Trials, § 2531. But the measure of murder in the first degree is not filled up. 1 Wharton, Crim. Law, § 392, says:
“Wherever the killing is with a deadly weapon, and there is evidence aliunde showing that this was intentionally, deliberately and unjustifiably used, then the inference, as we have just seen, is that of an intent to take life, a _d*224 the ease is murder in the first degree. The burden, however, of proving this is on the prosecution. Stripping the case of these incidents, however, and supposing that simply a malicious killing be proved, then the inference is of murder in the second degree.”
We have the crime of murder in two degrees by statute, as have most of the states, and Wharton’s comments are addressed to these statutes. See cases cited in 1 Wharton, Crim. Law, § 392, and especially O'Mara v. Commonwealth, 75 Pa. St. 424; State v. Wieners, 66 Mo. 13, 25; State v. Curtis, 70 Mo. 594; State v. Robinson, 73 Mo. 306. In McAllister v. Territory, 1 Wash. T. 360, the court said:
“The burden is on the territory to make out every material allegation in the indictment beyond all reasonable doubt. . . . And we are satisfied that so far as the facts attending the killing are concerned — at least so far as those facts are included in the res gestee, that the burden of proof never shifts.”
Prom these authorities and hundreds of others that might be cited, it is clear that to authorize a conviction of murder in the first degree the jury must have before them, in the case, whether produced by the state or the defense, facts which put it beyond a reasonable doubt that the murder was committed “purposely and of deliberate and premeditated malice, unless done in the perpetration or attempt to perpetrate rape, arson, robbery or burglary, or by administering poison or causing the same to be done.” Of such facts, as we view the evidence for the second time, and after many perusals, we find nothing. The distinction made between murder of the first and second degrees is a fine one, and it is not to be wondered at that juries sometimes fail to appreciate it; but the law makes it, and the law is master of us all.
The conclusion of the court is, that the judgment of death rendered in the superior court be set aside and vacated, but that the verdict of the jury stand, and that the
Anders, C. J., and Dunbar, J., concur.
Dissenting Opinion
(dissenting). — I am unable to agree with the conclusions of the majority in this case. I think that reversible error was committed by the lower court in its rulings during the examination of the witnesses Murphy and Bogart. During the examination of the former the prosecuting attorney asked the following question: “I will ask you if you heard him (referring to Seherbring) while he was asleep there, fumbleng with his hands and saying, ‘Freidrich, don’t!’in his sleep?” The court overruled the objection of defendant’s counsel, and allowed this question to be answered. In my opinion such question was clearly incompetent, and the objection of the defendant’s counsel should have been promptly sustained. And I understand that the majority of the court so holds, but they refuse to reverse the case on that ground for the reason that it does not appear that the answer elicited by such question was prejudicial to the defendant. I think it was. If the witness had answered the question directly in the negative, the ■ error would probably have been without prejudice, but such was not the case. The answer of the witness was that “ he did not remember particularly about that,” and therefrom the jury might have been led to believe that there was something of that kind said by Scherbring in his sleep, but that just exactly what it was, and whether it was exactly in the language of the question or not, had passed from the memory of the witness. If the jury did draw such a conclusion from said question and the answer thereto, it might have materially influenced their verdict. The exclamations of Seherbring when asleep
Scott, J. — -I dissent. I think the judgment should have been affirmed.
Rehearing
ON PETITION POE REHEARING.
— Counsel for appellant, with much heat, and language grossly discourteous, calls the attention of this court to the fact that in deciding the appeal nothing was said in regard to their exception numbered six. This exception was directed to the refusal of the superior court to charge the jury in the following language:
*227 “Having possessed yourselves of all the counter hypothesis (except the affirmative one of guilt) which the most diligent inquiry and reflection can afford, the next step on the part of the jury, and the most important one in the whole trial, is to dispose of them satisfactorily; it being the invariable rule that they must all be excluded from the case before the affirmatory hypothesis, however otherwise clear, can be safely adopted. If the evidence leaves it indifferent which of two or more hypotheses are true, it can never amount to proof of the principal facts sought.”
The substance of the charge requested was that the guilt of the prisoner on trial could not be found by the jury so long as there was any reasonable hypothesis of his innocence deducible from the evidence in the case. Counsel complains that the refusal to give this instruction was a vital injury to the cause of the appellant because the. principal defense urged at the trial was that the deceased ■ Scherbring had committed suicide; that the main argument of counsel to the jury was based upon that theory, and that the refusal of the court to charge as requested left the jury without proper instruction under which they could consider the theory of suicide. Now, after twice examining the record in this case we are unable to find any fact in the case which could justify an argument to the jury that Scherbring did commit suicide, and, therefore, if such was the purpose of the request the court below committed no reversible error in refusing to give the charge. But the court did charge the jury at least twice to the very substance of the matter requested. It used this language:
“ The jury are instructed as a matter of law that where a conviction for a criminal offense is sought upon circumstantial evidence alone, the state must not only show by a preponderance of evidence that the alleged facts and circumstances are true, but they must be such facts and circumstances as are absolutely incompatible upon any reasonable hypothesis with the innocence of the accused,*228 andincapableof explanation upon any reasonable hypothesis other than the guilt of the accused. That to authorize a conviction upon circumstantial evidence alone the circumstances must not only be in harmony with the guilt of the accused, but they must be of such a character that they cannot reasonably be true in the ordinary nature of things and the defendant be innocent.”
And again:
“The great duty of the jury in cases of circumstantial evidence is to possess themselves of all the negative or counter hypotheses of which the case will reasonably admit. It is the duty of the jury to inquire with the most scrupulous attention what other hypotheses, besides that of guilt, there may be which agree wholly or partially with the facts in evidence. Those which agree even partially with the circumstances in proof are not unworthy of your examination, because they lead to a more minute examination of those facts with which at first they might appear inconsistent.”
And again:
“ The presumptions of law independent of the evidence a.re in favor of innocence. This presumption of evidence remains with him until his guilt is established beyond a reasonable doubt.”
We therefore consider the alleged error, if error it was, to have been wholly harmless, and as furnishing no proper justification for a new trial.
That this court in its decision failed to mention exception six was due entirely to an oversight, and furnished no ground, even if it had been intentional, for the unlawyerlike language of this petition, which is denied.
Anders, O. J., and Dunbar and Scott, JJ., concur.