No. 2280 | Wash. | Dec 8, 1896
The opinion of the court was delivered by
Defendant was convicted in the lower court of murder in the first degree, and the death penalty was imposed. An appeal has been taken to this court by a bill of exceptions, and many errors are alleged.
The first assignment is that the trial, verdict and sentence of death are void and illegal, for the reason that the record fails to show that the defendant ever entered a plea to the information. While it must be confessed that many authorities are cited to sustain this contention, and while, in the earlier history of criminal trials and especially under the common law practice, such omission was almost uniformly held to be reversible error, we think, under the system adopted by the code in this state, that such an omission is purely technical, that it does not affect any of the substantial rights of the defendant, and that, if otherwise properly convicted, the judgment should not be reversed. Indeed, this is the holding of many modern courts under statutes similar to ours. The record shows that the defendant demurred to the indictment; that on October 3d he asked for further time in which to plead, being present both in person and by counsel; that time was given for one da}', or until October 4; that on October 4 the defendant, on being called on to present a plea, again asked for further time, which was granted, and the time extended one day more, or until October 5. After that he filed a motion for a change of venue and court adjourned until October 8. Subsequently the defendant interposed a challenge to the jury, had subpoenas issued
“ If the demurrer is overruled, the defendant has a right to put in a plea. If he fails to do so, judgment may be rendered against him on the demurrer, and if necessary, a jury may be impaneled to inquire and ascertain the degree of the offense.”
Nor does this conflict with § 1290, which provides that: “If the defendant fail or refuse to answer the indictment or information by demurrer or plea, a plea of not guilty must be entered by the court;” but rather strengthens the construction given above, that, if the demurrer is denied, further plea^ is unnecessary and the result will he the same as in a civil action, where, upon the overruling of the demurrer to a complaint, the defendant refuses to answer. But, under the section just above quoted, the plea of guilty is entered by the court only when the defendant fails or refuses to answer the indictment or information either by demurrer or plea.
In addition to this, this question was not raised in the lower court. Many of the cases cited by the appellant, even if we should hold with them, are where the question was raised upon a motion in arrest of judgment, or a motion for a new trial, where the matter was brought to the attention of the trial court so that it could be corrected there. But in this case the first mention that is made of this alleged error is in the brief of appellant in this court,- and the motion for a new trial being especially intended to direct the attention of the trial court to the error complained of and his attention never having been so directed, under the rule announced in numerous decisions of this court, it is too late to raise it now.
A third reason for refusing a reversal for this alleged
The next error assigned is that the verdict and sentence are void because the verdict was received and recorded on a non-judicial day, viz , Sunday. It is admitted by the appellant that the weight of authority is to the effect that the receiving of a verdict is not a judicial, but merely a ministerial act, which may be done on a non-judicial day. It is also conceded that we have a statute in this state expressly authorizing courts to receive verdicts on non-judicial days. But it is contended that § 6 of art. 4 of the constitution, which prescribes the jurisdiction of the superior courts, and especially that portion of the section which provides that “ they [such courts] shall always be open except on non-judicial days,” and that “ injunctions and writs of prohibition and habeas corpus may be issued and served on legal holidays and non-judicial days,” excludes the idea that anything else can be done by the court on non-judicial days; and that the court cannot be open on non-judiciál days except'in matters of injunction, prohibition and habeas corpus. We do not think that the constitutional provision is susceptible of this construction; but think, as contended by the respondent, that the provision that courts shall always be open, except on
The third assignment of error, viz., that the court erred in overruling a motion for a change of venue, is also without merit. This is a matter which is largely addressed to the discretion of the trial court, and an examination of the record fails to convince us that that discretion was abused.
The fourth assignment, that the court erred in overruling appellant’s demurrer to the information, has been passed upon so many times by this court, and is so avowedly presented here for the purpose of saving a right to appeal to the supreme court of the United States, that it is unnecessary to discuss it.
The fifth allegation, that the court erred in denying defendant’s motion for an examination ore terms of the compurgators Churchill and Jansen, on the motion for a change of venue, is equally without merit.
It is strenuously insisted by the appellant that the 6th assignment, viz., that the court erred in overruling defendant’s challenge to the panel of jurors, should have been sustained. It appears from the record that two members of the board of county com. missioners of San Juan county certified a list of names of persons selected by them to serve as petit jurors for 1895, and filed the list on January 15, 1895, with the clerk of the superior court. This list, it is
But appellant contends that he is injured because the commissioners did not included in their certificate to the clerk of the superior court the reason why such less number had been selected. We cannot understand how this certificate affects the appellant one way or the other. The alleged error is simply an irregularity in the procedure in which he has no vested right.
It is further contended by appellant that he had a right to have the jury drawn from a list of three hundred names selected by the board of county commissioners, under the provisions of ch. 78, Laws 1895, p. 139, which is’an amendment to the law just above mentioned. But it appears that the selection in this instance was made prior to the passage of the law of
Assignments 7, 8, 9, 10, 11 and 12 are in relation to the overruling of defendant’s challenge for cause to certain jurors. We have investigated these examinations and think that no error was committed. Where this court has had occasion to reverse judgments for the reason that jurors had been retained over the objection of defendants, they were cases where the jurors had themselves testified that thejr entertained opinions in regard to the guilt or innocence of the defendant, and where the court or the prosecution, by cross-examination, had led the jurors to state that they could lay aside these opinions and try the defendant impartially. But in this case it is evident from the examination that the jurors had been led to the expression of an opinion by the adroit questioning of the attorneys for the defense, and in each instance we think the challenge was properly refused.
The householder question has already been passed
We think that no-error was committed by the court in overruling the defendants’s objection to the question asked witness Nordyke on cross-examination by the state.
The only other assignment, which is not involved in what we have already said, is alleged error of the court in its instructions to the jury. The appellant finds fault with the court for stating to the jury in its instructions that “murder in the first degree is the crime mentioned in the information in this case, and is where a person purposely and of his deliberate and premeditated malice kills another;” on the ground that the language used by the court assumes that the crime of murder in the first degree had been committed. This, we think, is a strained construction to be placed upon the language of the court, and the language is entirely without prejudice in any way to the defendant.
The main contention of the appellant on the instructions is that they are in conflict with the announcement made by this court in State v. Rutten, 13 Wash. 203 (43 Pac. 30). In that case the language of the lower court was as follows :
“ Premeditated malice is where the intention to un- “ lawfully take life is deliberately formed in the mind “ and that determination meditated upon before the Í ‘ fatal stroke is given. There need not be any ap- “ preciable space of time between the formation of “ intention to kill and killing. They may be as in- “ stantaneous as successive thoughts. It is only necessary that the act of killing be preceded by the “ concurrence of will, deliberation and premeditation “ on the part of the slayer.”
This language was criticized by this court for the
“I said a moment ago I would define to you the “ different terms of deliberation, premeditation, pur- “ posely and malice. I have already defined to you “ what malice is. Purposely, as used in these instruc- “ tions, means an intentional doing with the intent of “ the party who does the act to do that certain thing. “ Deliberation is the mental operation of weighing “ motive or consideration that makes for or against an “ inclination of the proposed act or line of action. “ Premeditation is the mental operation of thinking “ upon an act before doing-it or upon an inclination “ before carrying it out.”
And the culmination of this instruction, which is specially objected to by the appellant, is as follows:
“Malice is deliberate and premeditated when it has “ been dwelt upon at all in the mind and when the mo- “ tive or consideration moving to his act has been to “ any extent mentally weighed. Premeditation may “ be as quick as thought in the mind of man.”
Although “premeditation may be as quick as thought,” this instruction does not do away with the idea of deliberation, which the instruction in the Rutten case did, because it does not connect defendant’s premeditation directly with the act, and does not instruct the jury that there need be no appreciable
We think that no error was committed by the court in refusing the instructions asked for by the defendant, as the instructions given completely covered the law of the case, and that no error was committed by the court in its instructions.
Finding no error anywhere in the record, the judgment must be affirmed.
Hoyt, C. J., and Scott, Anders and Gordon, JJ., concur.