66 Wash. 55 | Wash. | 1911
The appellant, Axel Nist, and one John Ford were jointly charged with murder in the first degree, by an information reading as follows:
“I, John F. Murphy, prosecuting attorney in and for the county of King, state of Washington, come now here in the name of and by the authority of the state of Washington, and by this information do accuse Axel Nist and John Ford, alias Ryan, alias Loffey, and each of them, of the crime of murder in the first degree, committed as follows, to wit:
“They, said Axel Nist and John Ford, alias Ryan, alias Loffey, and each of them, in the county of King, state of Washington, on the 23d day of February, 1911, did wilfully, unlawfully, feloniously, and with a premeditated design to effect the death of one Judson P. Davis, shoot at, towards and into the body of said Judson P. Davis, with certain deadly weapons, to wit, revolver-pistols, then and there loaded with powder and bullet, and then and there held by them, the said Axel Nist and John Ford, alias Ryan, alias Loffey, and each of them, thereby mortally wounding said Judson P. Davis, of which said mortal wound said Judson P. Davis then and there died.
“Contrary to the statute in such case made and provided, and against the peace and dignity of the state of Washington.”
The information was filed on March 21, 1911. At that time Ford was dead, he having died some two days subsequent to the shooting mentioned in the information. Nist was subsequently tried for the offense charged against him, and convicted of murder in the second degree. He appeals from the judgment and sentence pronounced upon him.
On the trial the state introduced evidence tending to show that Judson P. Davis, at the time he was killed, was a police officer of the city of Seattle; that he, together with another officer, one Hugh C. Smith, was doing patrol duty in an outlying district in the city of Seattle; that they were dressed
At the conclusion of the evidence, the court instructed the jury in part as follows:
“Respecting the alleged confession or statements made by the said John Ford after the shooting, and while in the*58 hospital, to newspaper men and the police officer, you are instructed that such statements in and of themselves do not prove a conspiracy. You must believe from other evidence in the case, either direct or circumstantial, or both, that a conspiracy had been formed before you could find a conspiracy established by the statements of the said John Ford after the shooting, and at most the statements, if any, of John Ford, would be corroborative thereof.”
Later on he recalled the jury, and after repeating the foregoing instruction, modified it in the following manner:
“On reflection, I withdraw this instruction from your consideration, and instruct you now to not consider the same as the law in this respect. Instead of that instruction, I declare the law to be as follows: Respecting the alleged confessions or statements made by the said John Ford after the shooting, and while in the hospital, to newspaper men and police officers, you are instructed, that such statements in and of themselves, standing alone, do not prove a conspiracy, and that unless you find from other evidence, direct or circumstantial, in the case, corroborative of such statements that a conspiracy to commit crime existed between the defendant and the said John Ford, you are to disregard such statements. But if you do find from the evidence that the statements of the said John Ford did relate to the defendant, and that the same showed, or tends to show, a concerted design to commit crime on the night in question, and while out for that purpose — that this shooting occurred wherein Davis lost his life — that said Ford or the defendant were the aggressors, and that the same is corroborated by other direct or circumstantial evidence in the case, then his statements are evidence that you may consider with other evidence in the case.”
The appellant assigns error upon the admission in evidence of the testimony of the witness Boyden as to the statements made to him by Ford, and the giving of the instructions above quoted.
The ground upon which the court admitted testimony as to the statements of Ford does not appear very clearly in the record. From the preliminary proofs it would seem that it was thought to be admissible as a dying declaration. But
It has been held, also, that where two persons were killed by -the same act, the dying declaration of one of the victims cannot be received in evidence on the trial of a person indicted for the murder of the other. State v. Westfall, 49 Iowa 328; State v. Bohan, 15 Kan. 407. In the case before us, the subject of the inquiry was not the death of Eord, and his dying declarations, merely as such, are not proper evidence on the trial of the appellant for the murder of Davis.
The instructions of the court above quoted would seem to indicate that it admitted the statements on the theory that the appellant and Ford conspired together to commit crime, and that the declarations of one co-conspirator are admissible to prove the guilt of the others. But this rule is inapplica
It is plain that what Ford told the witness Boyden was in no sense something said or done in pursuance of a conspiracy. It was but a narrative of past events, and is clearly without the rule that renders the declaration of a co-conspirator admissible as evidence.
In the briefs it is suggested that the statements were admissible under the doctrine of the case of State v. Mann, supra. In that case, one Nettie Mann and her husband, John Mann, were jointly informed against for the crime of arson; Nettie Mann being charged with having committed the offense, and her husband with having aided, counseled, and abetted her therein. The accused were tried separately, and on the trial of the husband, subsequent statements and confessions of the wife were admitted in evidence. It is thought that the rule that admitted the statements of the defendant not on trial in that case, would admit them in the case at bar. But the circumstances are not the same. In the case cited, the husband was charged as an accessory before the fact, and it was necessary for the state, in order to convict the accessory, to show the guilt of the principal. Hence, on that branch of the case, the state was at liberty to resort to any evidence that would have been admissible had the principal herself been on trial. It follows, as of course, that the confessions of the principal of having committed the offense were admissible to prove that branch of the case.
The state’s learned counsel, however, contend that there was an abundance of evidence to sustain the conviction outside of the objectionable evidence, and argue that its admission is, for that reason, not so far prejudicial as to require a reversal. But this court has no means of knowing what effect the erroneous evidence had upon the minds of the jury. It may have been the controlling factor that induced the verdict of guilty. Before the erroneous introduction of evidence can be regarded as nonprejudicial, it must clearly appear that it is so. It does not so appear in this instance. The appellant “was deprived of a right which the law accorded him, objectéd to the deprivation and duly excepted, and the presumption is that he was injured thereby.” State v. Lee Loon, 7 Wash. 308, 34 Pac. 1103.
The instructions excepted to require no especial consideration. Being founded upon evidence erroneously admitted, they are in themselves erroneous.
The judgment of conviction is reversed, and a new trial awarded.
Dunbar, C. J., Parker, Mount, and Gose, JJ., concur.