State v. Bird

• Decision Date: 04 November 1948
• Docket Number: 30563.
• Citation: State v. Bird, 198 P.2d 978, 31 Wn.2d 777 (Wash. 1948)
• Parties: STATE v. BIRD.
• Court: Washington Supreme Court

198 P.2d 978

31 Wn.2d 777

STATE v. BIRD.

No. 30563.

Supreme Court of Washington, En Banc.

November 4, 1948

Rehearing Denied Nov. 30, 1948.

Jake Bird was convicted of murder in the first degree, and he appeals.

Judgment affirmed.

SIMPSON and ROBINSON, JJ., dissenting.

Appeal from Superior Court, Pierce County; E. D Hodge, judge.

Jake Bird, pro se.

Patrick M. Steele, Martin L. Potter and John B. Krilich, all of Tacoma, for respondent.

MILLARD Justice.

Defendant was, by information, charged with the crime of murder in the first degree.The pertinent portion of the information reads as follows: 'That the said Jake Bird in the County of Pierce, in the State of Washington, on or about the 30th day of October Nineteen Hundred and forty-seven did then and there being unlawfully and feloniously while engaged in the commission of, or in withdrawing from the scene of, a burglary, kill and murder Bertha Kludt, a human being, by beating, chopping, cutting or bludgeoning her with an axe or other instrument, thereby mortally wounding the said Bertha Kludt, from which mortal wounds, she, the said Bertha Kludt, did on the 30th day of October, 1947, die, * * *'

Trial to the jury resulted in a verdict finding defendant guilty as charged in the information, and that the death penalty shall be inflicted upon him.Defendant has appealed from the judgment and sentence entered against him upon the verdict.The cause is Before us on a bill of exceptions, which contains so much of the record as appellant deems material to the review of the matters embraced within his appeal.

Appellant first challenges the information as insufficient for the reason that the degree of burglary, first or second, was not charged, and the information fails to state where the burglary was committed.

The question raised by appellant is foreclosed.The information is based on the statute, Rem.Rev.Stat. § 2392, subd. 3, which provides that the killing of a human being is murder in the first degree when committed by a person engaged in the commission of, or in an attempt to commit, or in withdrawing from the scene of, a burglary.The information satisfies the requirements of Rem.Rev.Stat. § 2065, which reads as follows:

'The * * * information is sufficient if it can be understood therefrom,----

'That it is entitled in a court having authority to receive; * * *

'That the defendant is named, * * *

'That the crime was committed within the jurisdiction of the court, * * *

'That the crime was committed at some time previous to the * * * filing of the information, and within the time limited by law for the commencement of an action therefor:

'That the act * * * charged as the crime is clearly and distinctly set forth in ordinary and concise language, without repetition, and in such a manner as to enable a person of common understanding to know what is intended;

'the act * * * charged as the crime is stated with such a degree of certainty as to enable the court to pronounce judgment upon a conviction, according to the right of the case.'

For the first time in a brief filed in this court, the verdict and judgment were challenged on the ground that no one of appellant's race had been considered in the selection of the jury.On oral argument appellant waived this assignment.

In the selection of the jurors, appellant's counsel challenged one for cause.Appellant assigns as error denial of that challenge, and also claims error in denial of the motion for a new trial, argued by his counsel on the same ground.

The challenged juror, when examined, stated, in effect, that, from what she had read in the newspapers, she had formed an opinion as to the guilt or innocence of appellant.When questioned by the court and appellant's counsel, the juror disclosed by her answers that she was an intelligent, informed juror, and that, notwithstanding any opinion she may have formed from reading the newspapers, she could and would render a fair and impartial verdict, according to the evidence.She answered in the affirmative the following question by appellant's counsel: 'Q.Now, isn't it true--let's suppose that you were charged with a crime here in this courtroom today and you had a juror in the box to try your case who had the same identical thoughts and opinions, heard just the same as you have heard, do you think you would want that kind of a juror to sit and try your case?'

We are convinced, from a reading of the record of examination of this challenged juror, that she was free of such bias or fixed opinion as would disqualify her from according the accused a fair and impartial trial guaranteed by the constitution and laws.Any opinion or impression this juror had was such as would naturally be entertained by any one reading the newspapers.She admitted in effect, that any opinion she entertained was tentative, and had its origin in the newspaper accounts she had read, and that that opinion was not so fixed as would disable her from duly weighing the evidence.The trial judge heard the answers of this juror and was in a better position than we to observe her attitude and demeanor.The assignment is without substantial merit.State v. Patterson,183 Wash. 239, 48 P.2d 193.

Appellant next contends that his confession should not have been admitted in evidence, for the reason that it was made under the influence of fear produced by threats, and that he was physically abused to extract the confession from him.The statute, Rem.Rev.Stat. § 2151, provides that 'The confession of a defendant made under inducement, with all the circumstances, may be given as evidence against him, except when made under the influence of fear produced by threats; but a confession made under inducement is not sufficient to warrant a conviction without corroborating testimony.'

A fair reading of the confession is an answer to appellant's contention that the confession was made under the influence of fear produced by threats, or extracted from him by brute force.The confession recites that appellant was sworn by a notary public Before he signed the confession, and that the confession was voluntary.There are two places in the confession where the typed statement was not in conformity to what the appellant deemed to be the truth.A line was drawn through each of these statements and appellant initialed each of these deletions.It is clear from those corrections that appellant knew what he was doing, and that he had carefully read the confession and was satisfied with it as corrected.The testimony of four witnesses who heard the confession supports the position of the state that the confession was voluntary and was not made under the influence of fear produced by threats.

There is no showing that the confession was made under the influence of fear produced by threats; therefore, it was the duty of the court to admit the confession in evidence.Where the evidence is in conflict on this point, the question is then one for the jury.State v. Clark,21 Wash.2d 774, 153 P.2d 297.As to whether the jury was properly instructed as to the conditions under which the confession was obtained, we are not informed; hence, it must be conclusively presumed that the court properly charged the jury on this phase of the case.

Appellant assigns as error denial of his motion for a change of venue because of local prejudice.While the assault committed upon the victim, for the murder of whom appellant was convicted was a brutal and atrocious one, and may have created considerable excitement in the community where the crime was committed, and while the newspaper accounts of that crime may have created some prejudice against the murderer, there is no showing that a situation had resulted which would prevent appellant from receiving a fair trial Before an impartial jury.The language, as follows, in State v. Schneider,158 Wash. 504, 291 P. 1093, 1095, 72 A.L.R. 571, is applicable in the case at bar: '* * * The trial court was in an excellent position to understand the...