Rose v. State

• Citation: 2 Wash. 310,26 P. 264
• Parties: ROSE v. STATE.
• Decision Date: 14 March 1891
• Court: United States State Supreme Court of Washington

26 P. 264

2 Wash. 310

ROSE v. STATE.

Supreme Court of Washington

March 14, 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, Geo. J. Moody, Pros. Atty., and A. G Hardesty, for the State.

STILES J.

The separate trial of John B. Rose for the murder of Sina Frederickson occurred in the week following that of John Edwards, and with the same result. The testimony of George Rose was produced as before, and other witnesses were called to corroborate him. The same line of proof was followed viz., that of showing expressions dropped by the accused, which, it was claimed, established a guilty knowledge on his part of the crime, and a participation in it.

Marion Bullard was called as a juror, and upon examination stated that he had read such accounts of the Frederickson affair as were published in the current newspapers; that he had talked with other persons in regard to it, and heard them express opinions; that he had formed, but had not expressed, an impression or opinion of his own; but he further stated that his former impression would have no influence upon him as a juror, and would not cause him to construe the evidence upon the side to which his impression had previously leaned. A challenge for cause was denied, but we think the ruling was correct. Joseph Kaiser was another juror. He was a laborer on the farm of James Albright,-one of the jurors on the trial of Edwards; talked with Albright and 30 or 40 others about the case; read the newspapers, including accounts of the testimony before the coroner's jury, and at the preliminary examination; had to a certain extent formed an opinion as to the guilt or innocence of John B. Rose, which had not been changed; it was a confirmed opinion, which it would require evidence to remove; if sworn as a juror it would require strong evidence to remove his opinion as to the guilt or innocence of the defendant; he would be governed by the evidence as given at the trial, and the law as charged by the court; could lay aside all his previous impressions, but still had an opinion, though not a decided opinion. Defendant's challenge for cause was denied. This was error. The liberality of courts in the matter of accepting jurors who have read and heard of what purports to be the facts in a criminal case is very much greater than formerly, but they have not yet reached a point where one who states that he has an opinion which it would take evidence or strong evidence to remove can be taken as a juror in a criminal case where the life of a prisoner is in jeopardy. By the court's ruling the defense was compelled to peremptorily challenge the juror to avoid the danger of his presence with a fixed opinion in his mind. There must have existed in the opinion of the court, notwithstanding his assertion to the contrary, a doubt whether or not he could be fair, which should have been resolved in favor of the prisoner.

The testimony of George Rose was in every material respect the same as in the Edwards Case, ante, 258, excepting that upon his cross-examination he made it clear that when, as alleged, the party, consisting of his father, Gibbons, Edwards, Frederickson, and himself, left the Rose house to go down after the cattle, no member of the party carried or had mentioned in his hearing any gun or weapon of any kind; that he was the last to leave the yard with his shotgun, which was then unloaded; that without any suggestion from the others he carried the gun, and loaded it as he went; and that nothing was said about the gun until Gibbons took it to shoot the hawk. He also particularly described how he spent his time on Sunday and Monday, February 2d and 3d, when he was alone at the ranch, feeding the cattle, preparing his meals, and quietly reading a book. The name of the book he could not at first give, but finally said it was "Tennis." Counsel suggested "Tennyson," and he agreed that that was the name of it; but beyond that there were stories in "prose," which he afterwards changed to "poetry;" he could not say what anything he read was about. He further said that Monday, February 3d, was a very stormy day.

In this case the corroboration was, if anything, weaker than in the Edwards' Case. John Anderson was active in raising a public subscription of money to employ a detective and a lawyer to investigate the disappearance of the Fredericksons, and went to Rose's house in South Bend to ask him to contribute. Rose was indignant; said he was being blamed for it, and would give nothing. He related what George had said about the Fredericksons going out and being lost on the bay, and appealed to George, who was present, to say if it was not true; and gave as a reason why the bodies did not float that other persons had been drowned there and never been found; his theory being that crabs or seals ate them. Many other people whom the witness met had the same belief as to the drowning, and a number refused to subscribe to the fund. The sheriff arrested George Rose in the presence of his father, at South Bend, and described the old man as being very much agitated by it. He was allowed by the sheriff to have an interview with George in the presence of one Sweet and Elwood, an attorney; and afterwards, when the sheriff was taking his prisoner to the boat for Bay Center, John Rose stepped up to his son and said to him: "Now, George, don't you talk to any one until you come up before the court, and then you tell the truth. You tell the court about seeing Fredericksons go out on that stormy day in the boat, and about a storm coming up, and you thought they were drowned." He asked permission to send a man along in the boat to protect George from mob violence, and, being invited himself to go, replied that he dared not, as threats were being made against his own life by persons who said they would mob him if he went outside of South Bend. Gibbons was sent by Rose to do what he could for George. The defendant Rose left home on Sunday February 2d, and went to Oysterville to attend a session of the county commissioners, and on his return from there visited a newspaper office at South Bend, and told the persons he met there in their conversation that his son George last week, at his place near South Bend, had wounded a wild goose, and by tying a string to its leg had caused it to attract others, so that he was enabled to kill 13 geese. One witness said he added: "I didn't know but what people would think it strange there was so much shooting going on up there, and I thought I would tell you what it is, so if there is anything said about it you would know." Another witness said his remark was: "You needn't mention any names in the paper," witness supposing it was given to him as an item. Another remembered his saying he thought it was a pretty smart trick, but he did not want anything said about it. Defendant maintained that he said this incident occurred "last fall," instead of last week, as the witnesses gave it. George Rose stated that in fact it did occur in November, 1889, and other witnesses showed that shooting on the flats at the mouth of the Willapa and on the bay was very common.

The testimony in regard to the finding of the alleged grave was repeated. One Prickett, who took the place of Edwards at the ranch, was called to relate a conversation between himself and Rose in regard to a rubber boot-leg, the materiality of which was that Frederickson and everybody else down there uniformly wore rubber boots, Mrs. Frederickson having a pair of them on when she was found; and George Rose had reported finding a boot along the shore, which he had again thrown away. Rose asked Prickett to look up this boot, as well as all the other boots about there, and keep them for any search party that came along. Prickett found a boot-top in the yard on the Rose place, and a number of other rubber boots in the same vicinity, and when he reported the finding of the boot-top to Rose the latter said: "Was the top cut off that boot?" Witness told him it was, when he asked further: "Didn't you or your boy cut...