16 Wash. 249 | Wash. | 1896
Lead Opinion
The opinion of the court was delivered by
The defendants were informed against and prosecuted for the murder of one Joseph Cicero. The charging part of the information was as follows:
“They, the said John McCann, James McCann and Michael McCann, in the county of King, in the State of Washington, on the twenty-first day of August, A. D. 1895, purposely and of their deliberate and premeditated malice killed one Joseph Cicero by then and there purposely and of their deliberate and premeditated malice, shooting and thereby mortally wounding the said Joseph Cicero, with a revolver pistol, had and held by them, the said John McCann, James McCann and Michael McCann, from which said mortal wound the said Joseph Cicero then and there died.”
Michael McCann, the father of the other two defendants, was acquitted by the jury, but John and J ames were found guilty of murder in the first degree and are under sentence of death. Their appeal therefrom presents a great many questions which will be taken up in detail, and the facts connected with the homicide will substantially appear in the discussion of certain of them.
The first errors alleged relate to the refusal of the court to sustain challenges for cause to two of the jurors who were called to try the case, but as the record shows that the defendants afterwards peremptorily challenged both of them and did not use all of their peremptory challenges, there was at least no harmful error. State v. Moody, 7 Wash. 395 (35 Pac. 132).
It is contended that the court erred in sustaining objections to certain questions asked witness Parhm upon his cross-examination by counsel for the defendants. The first one was, “You were connected with him [Cicero] when he ran a saloon in this city?” The objection to this was properly sustained, for it assumed as a fact that the deceased once conducted a saloon, of which there was no evidence, and it did not tend to show what the feeling was between the witness and the defendants and was directed to business matters only between the deceased and the witness, and, furthermore, the question was thereafter substantially answered in the further examination of the witness. The remaining questions were directed to occurrences between the deceased and the defendants, relating to altercations over road matters, and the part that the witness took therein. The objection was properly sustained to these questions. The witness had already testified that he was a friend of the deceased, and the court informed counsel for the defendants that he might interrogate the witness as to what feeling he had, friendly or unfriendly, towards the defendants,
The next error assigned is the refusal of the court to strike certain testimony given by one Weiss, relating to an occurrence between the deceased and John McCann some months previous to the homicide, and in answer to the question, “ Where did this conversation take place?” the witness answered, “Right there. Very near where he murdered him this year.”
It is contended that this answer was objectionable as giving the conclusion of the witness with reference to the guilt of the defendants.- But it was not specially objected to on that ground at the time. Counsel for the defendant said:
“ It impresses me, may it please the court, that this does not come within your honor’s suggestion, and I move to strike it all out.”
The suggestion referred to was made in ruling upon an objection to a prior question as immaterial and irrelevant, wherein the court said:
“ If the witness recalls a conversation where any threats were made I think it is proper for the witness to state it.”
Other questions were asked and answered after this ruling and prior to the question and answer above given, and the motion was apparently directed to the. whole of it. In response to the motion, the court said:
“ I do not think there is any necessity, particularly, to strike it out, if the jury do not understand any more about it than the court does.
The particular testimony of the witness above given was objectionable to the extent of stating his concha
When the state rested, the defendants moved to discharge Michael McCann on the ground that there was not sufficient evidence of guilt as to him to warrant submitting the matter to the jury. Michael McCann was acquitted, and of course he was not injured by the ruling, but it is contended that the other defendants were, on the ground that they would have been entitled to have certain of the testimony relating to the doings of Michael McCann stricken from the case after he was discharged. However this may be, we are of the opinion that there was sufficient evidence as to the guilt of Michael McCann, and of a conspiracy upon the part of all three of the defendants to warrant the court in submitting the whole case to the jury-
It appears that the McCanns, father and sons, lived together upon a farm. Cicero, the deceased, lived upon another farm near by, his house being about an eighth of a mile from McCann’s house, and they had all resided at said places respectively for some con
The testimony further shows that Michael McCann then immediately went up to or near Cicero’s place- and talked with Provan; that Cicero was near by, having just come out of his house from dinner, hut it does not appear that any conversation took place between Cicero and McCann at this time, and McCann returned home. There is testimony to show that immediately upon his reaching his house the second time his two sons, John and James, started for the place where Cicero had resumed work upon the road, as they say, to have a talk with him. But it appears that James McCann first armed himself with a revolver which he borrowed from a neighbor and carried in the pocket of a long coat he had just put on} while John McCann was in his shirt sleeves, the day being a warm one; that they approached Cicero rapidly and that James McCann immediately attacked him, saying, “You are going to whip old man Me
It is next contended that the court erred in instructing the jury that they had a right to take into consideration the appearance and conduct of the witnesses while on the witness stand, etc., and the right to consider the great interest the defendants had in the result of the verdict. A similar instruction was sustained by this court in State v. Nordstrom, 7 Wash. 506-513 (35 Pac. 382), and we think it was not error.
The next matters urged relate to the eighth assignment of error, which was that the court erred in failing to instruct the jury as to the law applicable to the state of facts the evidence of the appellants tended to prove. The argument hereon and this assignment are very general. The defendants state that they submitted some fifty requests to charge, in most of which they
“19. You are instructed that although you may believe from the evidence in this case that the defendants commenced the fight and made the first attack upon the deceased, if you believe that they had withdrawn from such attack, then the right of the deceased to employ force against the defendants ceased, and if the deceased did not desist from attempting to use violence towards the defendants, the defendants had a perfect right to defend themselves, and if they then found themselves in apparent danger of losing their lives, or of sustaining great bodily injury at the hands of the deceased, they had the same right to take the life of the deceased that they would have had if they had not originally commenced the fight. In other words, if the jury find from the evidence that the defendants first assaulted the deceased,- and that after such assault was at an end, the deceased left the defendants, went to his house, procured a weapon and returned towards the defendants with the apparent intention of resuming the affray by killing or inflicting great bodily harm upon the defendants, or either of them, and that the defendants in good faith believed that such was the intention of the deceased, even though as a matter of fact the deceased had no such intention, yet if his acts and movements were reasonably sufficient to induce in the minds of the defendants an honest*259 belief that such was the deceased’s intention; if you so find, you are justified in believing the deceased the aggressor, and that the defendants were justified in standing their ground and taking the life of their assailant.”
In considering this, a further reference to the facts is necessary. James and John McCann were twenty-eight and thirty-one years of age, respectively. It is conceded that they attacked and killed Cicero, but it is contended that there were two separate affrays, and that while they were the aggressors in the first one, Cicero was the aggressor in the second and that they then only acted in self-defense. While the testimony was somewhat contradictory, more particularly as between that given by the witnesses for the state and the testimony of the defendants personally, it was ample to show a most unprovoked assault in the first instance. There was testimony to show that James McCann had a handkerchief wrapped around the hand with which he struck Cicero immediately upon coming up to him. The claim on the part of the state was that he had some hard, blunt instrument in his hand concealed by the handkerchief, which he used in striking. He struck Cicero, knocking him down, and struck him several blows after he was down. One of the blows received by Cicero upon his left temple broke his skull, and physicians testified that it was sufficient in itself to result in death, and there was testimony to show that said injury was received at that time. In fact we do not understand it to be claimed by the defendants that Cicero received any in j ury after that time aside from the gun-shot wound. As to the part that John McCann took at this time, there was testimony to show that he prevented the others from interfering with James in his attack upon Cicero, and
There had been no attempt on the part of the McCanns to get away, but of course there may have been a desire upon their part to discontinue or withdraw from further conflict when Cicero appeared with the gun. Upon this subject the court instructed the jury that:
“ If you believe from the evidence that the defendants acting conjointly sought a difficulty with the deceased for the purpose of killing him, and without attempting to withdraw from said difficulty, but purposely and of their deliberate and premeditated malice with a deadly weapon took the life of Joseph Cicero, it is murder in the first degree.
“ The defendants cannot avail themselves of necessary self-defense if the necessity of that defense was brought on by the deliberate and unlawful acts of said defendants and they made no effort to withdraw from the combat.”
This covered the law of the case, and, in the absence of a request for a more specific one applicable to the facts, was sufficient, and there was no error in the premises. The time from the commencement of the attack to the killing of Cicero was short—a matter of some minutes only—and the claim upon the part of the state was that it was all one continuous affray.
The next matter urged as error was the refusal of the court to give certain instructions requested on the subject of a conspiracy on the part of all three of the defendants. By these instructions the court was asked to charge the jury that there was no evidence of such
“ If a conspiracy having violence and murder as its object, is fully proved, then the acts and declarations of each in furtherance of the conspiracy are the acts and declarations of each of the conspirators.
“ If the jury believe from the evidence that the state has proved a conspiracy between all the defendants to take the life of the deceased, and that they did so take the life of the deceased, then you are charged that in considering the guilt or innocence of the defendants, you may take into consideration every act and declaration of each member of the conspiracy in pursuance of the original concerted plan, and with reference to the common object which has been given in evidence before you. You are instructed as a matter of law, that the evidence and proof of conspiracy will in general be circumstantial, and although common design is the essence of the conspiracy, it is not necessary to prove that the defendants came together and actually agreed in terms to have that design and precede it by common consent.”
It is conceded that these were correct as abstract propositions of law, but contended that they were erroneous as applied to the facts of this case, and especially when considered with certain requests submitted by the defendants, wherein they asked the court to instruct the jury that they could not take into consideration, as against John McCann or James McCann, any threats witness Frank Sale testified were made by Michael McCann, and by separate instructions asked the same as to the testimony of each of the other wit
We think these were clearly competent, and while, of course, no witness testified directly that they had been communicated to the boys, because, as is likely, no one would have known of such communication but the defendants, the acts of the parties were in evidence before the jury and strongly indicated a mutual design and understanding. The threats made at a previous time could add nothing to the force of these made at the time, for it was certainly of small consequence whether the threats or the same statements in substance were made by Michael McCann four times instead of three. They were introduced in evidence for the purpose of convicting Michael .McCann, who was not present when Cicero was killed, and it is further argued that as the jury acquitted him they must have found that there was no conspiracy and that the court erred in not instructing that they were entitled to no weight as against the boys, but we do not think there was any error in submitting them to the jury as against all three of the defendants. The court did instruct that they were evidence only in case a conspiracy was
It is also contended that it was error for the court to submit to the jury the evidence of a conspiracy without instructing the jury as to what a conspiracy was in legal contemplation. It was certainly partly defined in the instruction given, that is, a common design, etc., and we do not find that any more specific instruction was requested by the defendants; therefore there was no error in not more fully defining it.
It is further contended that the court erred in instructing the jury on the subject of self-defense and refusing certain requests submitted by the defendants. The particular one questioned, that was given, was as follows :
“To justify the taking of life in self-defense it must appear from the evidence that the defendant or defendants not only really and in good faith endeavored to decline any further struggle and to escape from their assailant before the fatal shot was fired, but it must also appear that the circumstances were such as to excite the fears of a reasonable person, viewed from defendant’s stand point, that the deceased intended to take his or their life or to inflict great bodily harm, and that the defendants really acted under the influence of these fears, and not in the spirit of revenge.”
While it is contended that they were not called
A great many requests to instruct the jury were submitted by the defendants, and they are too numerous and long to be set forth herein, likewise the instructions given by the court to the jury were voluminous and covered every phase of the question, and the discussion so far has been with reference to a few of them questioned by the appellants. While there might be some ground for the contention that the word, “escape,” might have been interpreted by the jury as requiring the defendants to flee when Cicero appeared with his gun, we think, in the connection in which it was used, it was harmless,
Of course, as an abstract proposition of law, if the first affray had entirely ended and the defendants were where they had a right to be and were attacked by Cicero with a rifle, they would not be called upon to expose themselves to the risk of being shot down by attempting to run away. It is evident, from their own testimony, that they made no attempt to get away. The most they could claim was a desire to discontinue the affray when Cicero appeared with the gun, and that there was only an attempt on their part to defend themselves thereafter and prevent him from harming them.
The court, as before said, properly instructed the jury upon the subject of withdrawing, etc. The in
The instructions requested by the defendants upon the subject of self defense were not applicable to the facts of this case, where they were themselves the original aggressors, and for that reason they were properly refused by the court, and the others substituted, which were given, were sufficient.
It is next contended that the court erred in refusing to instruct the jury as requested, in substance, that the bare presence of James McCann at the time of the shooting was not sufficient to convict him, that there must have been an intention on his part to kill, etc., as such request was intended to present the attitude of James McCann, as he did not fire the shot that killed Cicero. The substance of this instruction was given, although in different language. Ample definitions of what constituted murder in its different degrees were given by the court, and that in order to convict a person of murder in the first degree, there must have been purpose, malice and premeditation, etc., with the intention of taking life. The court also gave the usual instructions that the presumptions of law are in favor of the innocence of the defendants, and that the burden was upon the state to prove each
It is further contended that the court erred in instructing the jury that “it is sufficient if there was a design and determination to kill distinctly formed in the mind at any moment before or at the time the fatal shot is fired.” Our attention is called to the case of State v. Rutten, 13 Wash. 203 (43 Pac. 30), which case this court has lately had occasion to examine upon this point. (State v. Straub, ante p. 111). We will not consider it further in this case, for it is conceded that no exception was taken to it. Even though it stated the law too strongly under our statutes, there is every indication that it was harmless in this instance, considering the testimony and the whole instructions given.
Another error claimed is that the evidence is insufficient to justify a conviction of murder in the first degree. In discussing the previous questions we have not undertaken to present it as strongly against the defendants as the testimony upon the part of the state might warrant, but enough has been shown, it seems to us, in what has been said, to render a discussion of this point unnecessary. We are of the opinion that the evidence was ample to sustain the conviction.
It is next contended that the motion for a new trial should have been granted on account of the misconduct of the prosecuting attorney in his closing argu
“ During the closing argument by Prosecuting Attorney Hastie, to the jury, defendants excepted to the following remarks made by him :
“ ‘ Defendants did not dare to have good reputation put at issue. They cannot prove good reputation unless put at issue.’
“ ‘ Now the mud in that rifle that Cicero had thrown to the ground — there is the mud — ’
“Mr. Lewis. ‘I do not like to interrupt you—the boys said they used it as a crutch coming down.’
"Mr. Hastie. ‘It was brought there and offered in evidence.’
“The Court. ‘Proceed.’”
It does not appear that the court acted upon it in any way, or that he was asked to direct the jury to disregard it. "While the remark with reference to reputation, etc., was improper, it was not sufficient to require a reversal. There had been an attempt to prove the good reputation of one of the appellants only.
Appellants further complain because the court held night sessions during the pendency of the trial, but this was a matter which was within the discretion of the court. Appellants were defended by several able lawyers and there is nothing to indicate that they were unduly hastened, and did not have ample time to protect the appellants’ interests during the trial.
After an examination of the long record sent up in this case, and of the voluminous brief filed by the appellants, we are of the opinion that there is not a single question of law urged that would entitle them to a reversal, and that there is nothing in the facts that would warrant an appellate court in interfering with the verdict. The judgment is affirmed.
Hoyt, C. J., and Dunbar and Gordon, JJ., concur.
Rehearing
On December 22d last an opinion was rendered by us whereby the judgment of conviction had in this case in the lower court was affirmed. (47 Pac. 443). Thereafter a petition for a re-hearing was filed, to which the court directed an answer by the state, and a re-hearing was subsequently granted and the cause assigned for argument at the last term. Upon such reargument and further consideration of the case, a majority of the court have come to the conclusion that the former decision ought not to stand.
It will not be necessary to reconsider the entire case, as we are satisfied with the views indicated in the former opinion, in the discussion of most of the questions, and a number of them will not be likely to arise upon a retrial of the cause. Some will be eliminated in consequence of the acquittal of Michael Mc-Cann. We have been led to grant a retrial upon the further consideration of the case as to one question only, and that is the instruction set forth given by the court to the jury upon the subject of self-defense, wherein the court charged the jury that:
“ To justify the taking of life in self-defense, it must “ appear from the evidence that the defendant or de- “ fendants not only really and in good faith endeavored “ to decline any further struggle, and to escape from “ their assailant before the fatal shot was fired,” etc.
The objectionable part of this instruction is the clause wherein the court told the jury that it was incumbent upon the defendants to endeavor to escape from the deceased. We were not entirely satisfied with this instruction upon the former hearing. It must be conceded that the meaning which would ordinarily be attached to the word, “ escape,” as here
We desire to add a word, also, with respect to another feature of the case, and that was the request for an instruction with reference to the guilt of James McCann. We can see no reason why more particular instructions should not have been given upon this subject, as requested, although we found no error in the premises, considering the instructions that were given thereon. Where instructions requested are pertinent and clear, it is- desirable that they should be given-rather than to have others of a more general nature substituted by the court.
Reversed and remanded for a new trial.
Anders and Reavis, JJ., concur.