35 Wash. 558 | Wash. | 1904
Appellant was convicted of murder in the second degree, and appeals from a judgment entered thereon. The undisputed facts are substantially as follows: During the Month of May, 1902, appellant and his wife were living at Ballard, in King county. On the 15th day of May, 1902, a female child was bom to them. On the last day of May, 1902, appellant disposed of all his household goods, and Mrs. Underwood and the baby spent the evening with Mrs. Hetzler, a neighbor. At about nine o’clock appellant came to the house of Mrs. Hetzler and, in company with his wife and baby, started for Seattle. The baby at that time was asleep and apparently well. The next morning, June 1, 1902, at about 6:30 o’clock, the baby was found dead on the tide flats, near the street car line leading to Seattle. The baby was tied inside of a sack, in the bottom of which was a stone weighing about ten pounds. The weight of the baby was about eight pounds. The body was carried to an undertaking establishment, where a post mortem examination was held on the next day, viz., June 2, 1902, when the doctors present concluded that death resulted from drowning. On June 1, defendant and wife left Seattle for Aberdeen, where their parents resided. On Tuesday, June 3, 1902, defendant heard that there was a warrant out for his
Defendant confessed that he had killed the child, but stated that the killing was done accidentally without criminal intent, and substantially as follows: That soon after leaving the house of Mrs. Hetzler, and while he and his wife were waiting for a street car on which to ride to Seattle, the child became sick and appeared in much distress; that, in order to relieve the suffering of the child, he administered chloroform which he happened to have in his pocket; that through inadvertence an overdose was given, from which the child died; that, being without friends and money, and not knowing what to do, defendant and his wife decided to dispose of the body by dropping it into the bay; that thereupon defendant went back to the house where they had lived, which was but a short distance away, and procured a sack and a rock, and placed the baby in the sack with the rock, and dropped sack and all into the bay, where it was found.
On a trial before a jury, the defendant was found guilty of murder in the second degree. Other facts necessary to an understanding of the questions discussed will be stated hereafter. Appellant assigns errors as follows: (1) In overruling appellant’s motion for a continuance; (2) that the evidence is insufficient to support the verdict of murder in the second degree; (3) in submitting to the jury the question of appellant’s guilt of any crime other than murder in the first degree; (4) in ruling on the admissibility of evidence; (5) in refusing to grant a new trial, because of misconduct of a juror, and of newly discovered evidence. We shall consider these assignments in the order stated.
(1) Soon after appellant’s arrest, his father employed M. K. Snell, an attorney of Tacoma, to defend the accused. Snell accepted the employment, and was relied upon by
This motion for a continuance was not based upon any statutory ground, but depended upon the discretionary power of the tidal judge. This power will be reviewed and revised only for its abuse. It is true, so far as the affidavits show, that no fault attached to the appellant for the withdrawal of his principal attorney five days before
(2) Appellant nest insists that the evidence is not sufficient to support the verdict of murder in the second degree, because, under the evidence in the case, the defendant is guilty of murder in the first degree or is not guilty at all. This contention is based upon the fact that there is no direct evidence of deliberate or premeditated malice, but that these elements of the crime depend upon circumstances. The main issue of fact was whether the child was drowned or was hilled by chloroform. The court instructed the jury that, if they entertained a reasonable doubt that the child was drowned, or if they believed that the child came to its death by chloroform, then they must find the defendant not guilty. It is argued that the same evidence which proved the death of the child by drowning also proved deliberation and premeditation, and, sine© the jury found that there was no deliberate and premeditated malice, they must have found the defendant not guilty. There was evidence to support a verdict of murder in the first degree, and appellant cannot complain because he was convicted of a lesser offense than the evidence warranted. Appellant argues that the evidence shows that the child’s death did not result from drowning. It is true that the defendant himself testified that the death was caused by an overdose of chloroform. It is also true that some of the physicians testified that, from certain symptoms, death may have resulted from chloroform. There was also much evidence that death resulted from drowning. This question was one entii'ely for the jury, and, from a careful reading of the whole evidence, which need not be reviewed here, we are of the opinion that there was ample evidence that death resulted from drowning, and that therefore there
(3) It is next assigned as error that the court submitted to the jury the question of murder in a lesser degree than the first. The court instructed the jury to the effect that: “ Under this information and the laws of this state, the defendant can he convicted, if the evidence justifies it, of any one of three offenses. . . These offenses are murder in the first degree, murder in the second degree, and manslaughter.” The court then proceeded to define each of these degrees of murder. It is argued that, because under the evidence hut one of two verdicts could be returned, viz., guilty of murder in the first degree or not guilty, it was error to instruct the jury upon any other degrees of the crime charged. Many authorities are cited to the effect that, where there is no evidence which might authorize a verdict for a lower degree of the offense than that charged in the information, a charge defining other degrees should not be given. If we concede that these authorities state the correct general rule, they do not help appellant, because there was evidence of deliberation and premeditation. A charge of murder in the first degree contains all the elements or facts constituting murder in the second degree. The only difference, under the statute, between murder in the first degree and second degree is that in the former there must he deliberate and premeditated malice, while in the latter the killing must he done purposely and maliciously, but without deliberation and premeditation. The proof of deliberation and premeditation may, and frequently does, flow from the same circumstances as those which denote intent and malice, but one doe's not necessarily follow from the other. Where there are facts or circumstances from which intent and malice or deliberation and premeditation may he found, it is always the
(4) When Dr. Powell, a witness on behalf of the defense, was on the stand, he was asked the following questions :
“Q. If an examination was held upon a body for the purpose of ascertaining the cause of death, is it not necessary to take notes of the different steps, to measure the parts examined, and, in a case where drowning is suspected, to examine microscopically the contents of the lungs and stomach, to examine the brain, and all parts of the body, before coming to a conclusion, and particularly where a man’s life is at stake, or murder is suspected? A. It certainly was. Q. How, in an examination such as this one was, where the brain is not examined, the contents of the lungs are not microscopically treated, no test is made to see what the fluid in the lungs and stomach is, would you say that, was a sufficient and thorough examination on which to base a conclusion as to the cause of death ?”
“The evidence was before the jury as to how the examination of the body of the child had been conducted. Tbe previous question asked and answered by Dr. Powell indicated his idea of the requisites of such an examination, and the jury were required to judge whether the examination was conducted properly. Although great latitude is allowed in the examination of experts, it would seem wholly unnecessary for them, in a case like this, to characterize an examination in answer to a hypothetical question, especially when they had already detailed how such an examination should be conducted and what should he done.”
The ruling of the court excluded no evidence which was not in fact before the jury.
A number of physicians were called as expert witnesses by the state, and to each of these witnesses the prosecuting attorney propounded a hypothetical question for the purpose of obtaining an opinion as to the cause of the child’s death. A sample of these questions is as follows:
“I will ask you, doctor, to suppose the case of a child three weeks old, or thereabouts, was ordinarily healthy, was apparently well, was in its mother’s arms at about nine o’clock on Saturday evening, and a little after, on the following Sunday morning at about 6:30 o’clock or thereabouts, the same child was found in a sack inclosed with a stone weighing about ten pounds, the child itself weighing between seven and eight pounds in life or immediately after death. The waters ebbed and flowed at the spot where the body of the child was fonnd, to a depth of from three to five feet at high tide. The child was securely inclosed in the sack by a string tied around the top of the*571 sack or bag. When removed from the sack a frothy foam was found in the nostrils and round about the mouth, and some milk curds were found in the back part of the mouth. The hands were- rigid and closed or clenched. The left hand was clasped, or grasping the garment^ that was upon the arm, by the fingers resting against the palm of the hand. The child was removed from the sack and its clothing removed, and a post mortem was held the following day. Whereupon the sternum was removed, and it was found that the walls of the chest were expanded, and the lungs filled the cavity of the chest so that some pressure was exercised against the under side of the sternum or breast bone. The right side of the heart was gorged with blood. There was also some blood in the left side of the heart. The veins throughout were gorged with blood. The arteries were only slightly filled. The stomach was well filled, or contained a watery fluid or milk curds. The lungs were removed and slight incisions made in the outer surface of the different lobes at different places. Immediately after the incisions were made a watery fluid would come from the outer surface of the lungs. IJpon squeezing the nose a foam or froth would come from the nostrils. The child was dead when found. In your opinion, if you could form an opinion from these facts, what was the cause of the death of that child ?”
These questions were objected to upon the ground that they assumed facts which were not established by the evidence, and included certain facts concerning which the state’s own witnesses were contradictory, and that these questions, when the statements of the witnesses are conflicting, should state the facts most favorably to, the opposing party, and not most favorably to the party propounding the question. It is true that some of the witnesses for the state were not entirely agreed as to the symptoms and conditions of the child when it was taken from the sack and examined. But all the conditions named in the hypothetical questions were testified to by different witnesses,
Error is assigned upon the refusal of the court to give an instruction requested relating to the good character of the defendant. This instruction is quite long and involved, but the substance of it is that, where a character witness testifies that he knows the defendant and his associates in the community in which he lives, and that he has never heard defendant’s character called in question, such character is good. This is no doubt the law, and in a proper case should be given. In this case several witnesses stated that they had known defendant for a long time, and knew his associates, and that his reputation was good because his character had never been questioned. This evidence was submitted to the jury, and, so far as the record shows, there is nothing to indicate that the prosecution questioned that it was the best evidence of good character. Hot being questioned, and the court having submitted it to the jury and said to them that evidence of previous good character is competent, as tending to show that a defendant would not be likely to commit the crime charged, if they found that defendant had borne a good character among his neighbors and acquaintances, after the jury had considered all
Appellant argues that two other instructions are erroneous. These two instructions tell the jury that, if they find certain enumerated facts to be true, “then their verdict should be guilty of murder in the first degree,” etc. It is argued that these two instructions are inconsistent with the facts, not supported by the evidence, and inconsistent with the theories of both plaintiff and defendant. We do not think these criticisms are well founded in fact. But even if they are, they cannot avail appellant here. The jury found the defendant guilty of murder in the second degree, which was an acquittal of the higher degree. 2sTo possible injuiy, therefore, could have resulted to the appellant from giving these two instructions.
(5) Appellant argues that the court erred in refusing to grant a new trial, first, upon the misconduct of the jury. It appears that a juror by the name of Warson, upon his voir dire examination, qualified himself as a juror and was permitted to remain upon the jury. After a verdict had been rendered, the appellant filed four affidavits, in which it was stated, that'the affiants in all of them were members of a jury in a case on trial in another department of the superior court of King county, on September 22, 1902, while a jury was being obtained in this case; that said jury was out all night on said night, considering their verdict; that said juror Warson was also a member of said jury, and out all night with affiants; that during the night of the 22d of September, 1902, the jurors generally talked over the facts in the Underwood case, and generally and freely expressed their opinions respecting the defendant
In answer to these affidavits Mr. Warson denied that he made any of the statements attributed to him, denied that he was acquainted with or knew the affiant Watton, or had ever had any conversation with him about the Underwood ease, and denied that he heard any of the discussion or opinions concerning the Underwood case by any of the jurors on the night of September 22, or at any other time, or that he was in any way biased, but alleged that he was entirely qualified as a juror on the case. Another juror, who was out with Mr. Warson on the said jury during the night of September 22, testifies that there was no discussion of the Underwood case in his presence that night, or in the presence of Warson to his knowledge, and he also testifies that he was closely associated with Warson on that night, and that, if Warson had expressed any opinion, he would have known it. Three other influential business men make affidavit to the fact that they are intimately acquainted with Warson, and had associated with him just previous to the trial of the Underwood case, and that, if said Warson had been biased in any way in the case, or had
Appellant was no doubt entitled to a fair and impartial jury, and, if one of the jurors had made the statements above referred to, and had then wilfully qualified himself to sit on the jury, this would have been such misconduct, as to give the appellant a new trial. It of course devolved upon the appellant to show the fact of misconduct, or at least to create in the mind of the court a well grounded suspicion that the fact may be true. The counter affidavits evidently convinced the lower court, as they convince us, that the charge was mistakenly or wrongfully made. We have gone carefully over all these affidavits, and it seems to us therefrom that the charge was entiz'ely overcome by the answering affidavits on file.
It is finally argued that the court erred in denying a new trial on the ground of newly discovered evidence. This evidence consists, it is claimed, of a photograph of the dead child taken before the post mortem examination was held, which picture shows the open hand and closed eyes of the child; and also consists of the evidence of the undertaker "Whitlock, to the effect that when he took the child out of the sack its eyes were closed and its hands were open. It was one of the main contentions of the appellant that closed eyes and open hands were symptoms of death by chloroform, and opposed to death by drowning. Much of the evidence for the ten days during which the trial lasted was devoted to this question. In other words, this evidence is wholly cumulative. The witness Whitlock was upon the witness stand and could have been examined upon these points if appellant had desired to do so. But, upon the ground that the evidence is cumulative, we think the lower court, was justified in denying the motion.
Fullerton, C. J., and Hadley, Anders, and Dunbar, JJ., concur.