Edwards v. State

• Citation: 2 Wash. 291,26 P. 258
• Parties: EDWARDS v. STATE.
• Decision Date: 13 March 1891
• Court: United States State Supreme Court of Washington

26 P. 258

2 Wash. 291

EDWARDS v. STATE.

Supreme Court of Washington

March 13, 1891

Appeal from superior court, Pacific county; N.H. BLOOMFIELD, Judge.

SCOTT J., dissenting.

Caples, Hurley, Allen & F. D. Winton, and Kanaga, Holcomb & Elwood, for appellant.

C. W. Fulton, George J. Moody, Pros. Atty., and A. G. Hardesty, for the State.

STILES, J.

The appellant was indicted jointly with John B. Rose, George F Rose, and James E. Gibbons for the murder of Sina Frederickson, near South Bend, in Pacific county, on Thursday, January 30, 1890, and was tried separately. Before the trial a motion to change the place of trial to another county, on the ground of prejudice on the part of the community against the accused, supported by numerous affidavits, showing the circulation of some intemperate newspaper articles among the people of the county, and considerable hostile feeling in the neighborhood of where the alleged crime was committed, was made and denied. But, inasmuch as the statute (Code, § 1073) seems to vest the matter of a change of venue in a criminal case entirely in the discretion of the trial court, we should not feel warranted in reversing a conviction, unless the discretion had been most clearly abused. Here, however, but 26 jurors were examined, and there is no complaint of any misconduct on the part of the jury selected. It seems to be probable that, while it was true that the persons qualified to act as jurors who lived in the vicinity of South Bend would have been very few by reason of the excitement they were under, still there was a large portion of the county from which the jury was actually drawn, where the excitement did not exist.

The prosecution in this case relied entirely upon the testimony of George Rose. Without his statement there were some circumstances which might have pointed to the accused as the person, or one of the persons, who had committed the homicide; but, under the theory of the state upon the trial these circumstances were entirely laid aside, and became of no value. George Rose was the first witness called for the prosecution, and the defense at once objected to his being allowed to testify, on the ground that, being jointly indicted with the prisoner on trial, he could not be a witness until he had been discharged. The court overruled the objection, and permitted him to testify, which appellant urges as error. But under the liberal system we have, which permits almost every person to testify in any cause, whether civil or criminal, we think it was not error to allow one indicted with the prisoner, but not put upon trial with him, to be used as a witness. The language of section 1092 of the Code is: "When two or more persons are included in one prosecution, the court may, at any time before the defendant has gone into his defense, direct any defendnat to be discharged, that he may be a witness for the state;" and it will thus be seen that we interpret the word "prosecution" to mean "trial." It can work no substantial injury to the accused whether the witness has been discharged or not. While still under indictment, the witness cannot be used as such, unless by his consent; and by his willingness, and his voluntary act of testiying, which he should never be allowed to do unless it is clearly necessary for the case of the state, he earns the equitable right to a discharge, which will always follow where he has been straightforward and honest with the court; whereas, on the other hand, if he has been discharged, and then in his testimony plays false with the court, the order of discharge will be set aside, and he will be put upon trial, even on his own confession. Therefore the temptation to press hard upon the accused in giving his testimony is equal in either case, and his credibility, not his competency, must be the point of attack.

The deceased, Sina Frederickson, was undoubtedly the victim of a most brutal murder, somewhere near the time alleged, (January 30, 1890,) and it is almost equally certain that at nearly the same time, and by the same hand or hands, her husband, Jens Frederickson, met a like violent death. Both were probably instantly killed,-she by a rifle bullet, he by a load of small shot and percussion caps, both being shot through the head. Their bodies were found about a mile apart,-hers being buried under the refuse of a hog-pen upon the premises of John B. Rose, near the shore of Shoalwater bay, about four miles below South Bend, and on the opposite side of Willapa river; and his being laid in a trail made by cattle, close to some large logs, further to the west, and within a few rods of high-water mark on the bay. The grave in which Mrs. Frederickson was buried had been excavated to a depth of two or three feet; but her husband lay in the hollow made by the cattle in jumping over the logs where the ground was swampy, and was covered by very little earth and some coarse sods, just enough to hide him. His body was discovered accidently by searchers, while hers was pointed out by George Rose, when all the efforts of the searchers to find it had failed. These two unfortunate young people, only a month before their death, had taken up their residence upon certain government land adjoining the land of John B. Rose, and were living in a boat-house floated up on some logs at high-water mark. The land had been previously several times occupied by different claimants, who had abandoned it, and Frederickson intended to prosecute a contest in the land-office to clear the record of former filings. The Rose place consisted of something over a hundred acres, and had upon it a farm-house and outbuildings, an orchard, etc. It had been settled for many years, and was used by Rose as a place to keep cattle and poultry, and for the raising of supplies for his hotel in South Bend, where he lived. No other person lived in the vicinity of this land, and the country around was wild, rough, and uncultivated. The only means of travel upon it seems to have been the waters of the bay and river. Edwards, the appellant, was a young man, employed by Rose to attend to the cattle and other property at the ranch, and lived there alone; but it had been for some time arranged that he should quit his employment, and a man named Prickett, with a family, had been engaged by Rose to take his place. Edwards left this ranch on Sunday, February 2d, and in all probability, had it not been for the revelations of George Rose, he would have been more than suspected of this double crime, although the body of the woman might never have been found. But, as will appear in the aspect in which the case was presented at the trial, this presence of Edwards so close to the scene of the crime, and so near the time when the Fredericksons were missed, cut no figure at all as a circumstance tending to prove his guilt.

George Rose was the first witness for the state, and the only witness, excepting those who were called to corroborate him by showing the language and actions of Edwards after he was suspected of participation in the crime. After stating that he was 18 years old, and that he knew the Fredericksons, he was asked to tell the story of the killing of the Fredericksons in his own way, which he did in these words: "Well, on the 29th day of January father came to me in the evening, and says to me he wanted me to go down to the place the next day with him to look after some cattle. And Ed. Gibbons stood about ten or twelve feet from him, and he said he would like to go down with us. So the next morning we went down about half past six o'clock in the morning,-left South Bend. And all three went down to the place, and when we got down there we saw Edwards was there and we went in the house, and father and Gibbons and Edwards was standing there talking awhile in front of the house, by the gate. Father says to Edwards: 'You better go up and get Frederickson to help bring the cattle down;' so father and Edwards went off after Frederickson, to bring the cattle down, and brought him down, and went down after the cattle. And we walked along the bluff, and there was a hawk set up on a tree, and Gibbons says to me, 'Give me your gun, and I will see if I can kill that hawk;' and I let him have the gun, and after he shot the hawk he kept the gun, thinking he might see some geese to shoot at; and we walked down until we got down by the cow trail, and Gibbons walked ahead, father next, and I was behind father, and Frederickson behind. And I heard Gibbons say to Frederickson, 'Look here, Frederickson,' and just then he shot; and I turned around and said, 'That's a pretty way to use a man after calling him to help drive the cattle up;' and Gibbons says, 'That's the kind of cattle we came down after.' I told him if I had known that I would not have come down with them. So after Gibbons shot Frederickson, Edwards walked into the brush, and got a spade out, and began to look around for a place to bury him; and it was in the cow trail; and father says, 'That's good enough place right here;' and Edwards went to work and dug the grave, and I went off ten or fifteen feet from where they was, and sat down on a log, and never looked up at them until after they had the grave ready, and called me to help lay him in the grave. They had his gum boots pulled off and gum coat, and laid them down where he was dropped; and I helped put him in the grave, and throwed over what loose dirt there was, and then they pulled some grass sod up, and put it on top of him; and after that father picked up his gum coat and boots, and throwed them down in the slough, as we walked along about a hundred yards from where he was buried; and we walked up to the house, and as we got along the beach father said, 'Better hurry up and get Mrs. Frederickson down; she...