State v. Boyce

• Citation: 24 Wash. 514,64 P. 719
• Parties: STATE v. BOYCE.
• Decision Date: 08 April 1901
• Court: United States State Supreme Court of Washington

64 P. 719

24 Wash. 514

STATE v. BOYCE.

Supreme Court of Washington

April 8, 1901

Appeal from superior court, Pierce county; W. H. H. Kean, Judge.

Eben L Boyce was convicted of murder in the first degree, and he appeals. Affirmed.

James F. O'Brien and G. W. H. Davis, for appellant.

F Campbell and Charles O. Bates, for the State.

DUNBAR, J.

The information filed in this case charged appellant with murder in the first degree. Upon the trial he was convicted of murder in the first degree, and judgment was pronounced in accordance with the verdict. From such judgment this appeal is taken.

The first assignment of error is that the court erred in arraigning appellant and compelling him to enter his plea before he could procure counsel, and without appointing counsel for him. The record shows that the accused was arraigned and caused to plead before counsel were appointed for him. The accused killed his wife by shooting her several times with a revolver in a restaurant in the city of Tacoma. The shooting occurred February 10, 1900. The accused was arrested, arraigned, and pleaded, on Tuesday, February 13th without counsel. There is no substance in the assignment of error, however, for after counsel were appointed, on February 20th, they were allowed to withdraw the plea of not guilty and a demurrer was interposed to the information, and motion to quash the information was also filed on the 21st of February; so that the error, if any, arising from the action of the court in causing defendant to plead before counsel were appointed, was remedied by the subsequent action of the court in allowing the plea to be withdrawn.

The second assignment is that the court erred in overruling the appellant's demurrer to the information. Outside of the fact that the record does not contain the demurrer, and no exception appears to the order of the court overruling the demurrer, we have examined the information, and think it is unassailable.

The third assignment is that the court erred in denying appellant's motion to quash the information, for the reason that neither the information nor record shows the necessary facts to exist in order to prosecute by information. It may be stated that the record shows that this motion was not properly made, and not made at the proper time, it having been made after the overruling of the demurrer; yet, on the merits of the motion, in answer to the objection that the information does not show the necessary facts to exist in order to prosecute by information, viz. that there was no grand jury in session, and that the defendant had not been committed by a magistrate, it has been frequently held by this court that it was not necessary that the information should allege the existence of the facts authorizing the filing of the information. In State v. Anderson, 5 Wash. 350, 31 P. 969, it was said: 'The ground upon which the information is attacked is that it does not affirmatively appear upon the face thereof that there was no grand jury in session, nor that the defendant had been committed by a magistrate on said charge. Neither of these objections can avail appellant. It is true that certain facts must exist before the prosecuting attorney gets jurisdiction of the case in such a manner as to be authorized to file an information against the defendant, but the statute nowhere makes it necessary that the existence or nonexistence of such facts should be made to appear upon the face of the information.' And such has been the uniform ruling of this court ever since.

The fifth assignment is that the court erred in denying appellant's motion for a continuance. Very strong affidavits were made by the attorneys for the defense in support of their motion for a continuance in this case. This motion was overruled by the lower court, and it is earnestly contended that there was an abuse of discretion of the court in denying the motion. We have examined with care the affidavits on file, but when taken in connection with the whole record, it appearing that several of the witnesses, whom it is alleged in the affidavit the defendant would not be able to obtain at the trial, were present and testified at the trial, and especially the father of the defendant, who, it was alleged, was absolutely necessary to the defense, and the additional fact that several other witnesses were obtained from the places where the witnesses lived who were mentioned in the affidavit, and who testified substantially to all that it was claimed in the affidavit the witnesses desired would testify to, we are not able to say that the court abused the discretion which is so largely vested in it by the law, or that the defendant was in any way prejudiced by the overruling of the motion.

Neither does it appear from the record that any exception was taken to the ruling of the court in setting the case down for trial on March 19th. The murder was committed on the 10th of February. The arraignment and first plea were on the 13th. The appointment of the counsel to defend was on the 20th. On the 21st the plea was withdrawn, the motion and demurrer filed and overruled, and the cause set for February 27th. On the 24th day of February, counsel filed an affidavit for continuance over the term, it being just at the close of the jury term. The court, however, continued the case to March 19th.

The next contention is that the court erred in denying appellant's challenge for cause to Juror J. Lemon. In answer to the question by Mr. Davis, 'Would you require any greater evidence to convict a man for murder in the first degree where the penalty is death than you would to convict him where the penalty is imprisonment in the penitentiary?' the juror answered, 'No, sir;' whereupon the juror was challenged for bias and implied bias. The court remarked, 'I know of only one rule, and that is, beyond a reasonable doubt;' asking the following question of the juror: 'You would obey the instruction of the court as to the law in the case, wouldn't you, Mr. Lemon? Answer. Most assuredly. The Court: I see nothing in the juror that is unfair or biased so far. Mr. Davis: We desire an exception to the ruling of the court.' We think the court properly stated the rule. The juror must be convinced beyond a reasonable doubt of the guilt of the accused. The man who is on trial for a capital offense is entitled to this. He who is on trial for a lesser crime is no less entitled. Neither are we able to see in what manner the remarks of the court could have prejudiced the defendant. The court has a right to ask jurors leading questions, because it is the duty of the court to pass upon the qualification of the juror. We therefore think no error was committed in this respect. The same may be said of the further objection to the court's questions to the juror in relation to the juror's prejudice against the drinking of liquor.

The denying of the appellant's challenge to Juror Oleson is the sixth assignment of error. The examination of this juror is too long to reproduce in this opinion, but in answer to the question, 'Did the account you read in the News at the time tend to fix an impression in your mind as to the guilt or innocence of the defendant?' the answer was 'No, sir.' 'Question. Have you talked with anybody about the case? Answer. No, sir. Question. Have you ever expressed an opinion as to the merits of the case? Answer. No, sir. Question. Have you any opinion? Answer. No, sir.' This was the first testimony of the juror in answer to plain questions, and it will be noted that he stated that the account that he read had not tended to fix either an opinion or an impression upon his mind, and that he had no opinion at the time of the examination. Further on, under the examination of Mr. Davis, counsel for defense, after the witness had stated that he had never heard any one speak anything about this case, the following occurred: 'Question. You read an account of it, did you? Answer. Yes, sir: I read it in the paper,--in the News or Ledger. Q. Well, at the time you read the account, did you have any impression as to whether or not a woman had been killed? A. No, sir. Q. Did you have any impression as to who did it? A. No, sir; it was simply a man's name in the paper. Q. You thought that he was the one that did it? A. That is what I thought. Q. You thought that some one had killed a woman down here on Tenth street? A. Yes, sir. Q. Now, you believed from that the defendant, whose name was in the papers, was the man that did it, didn't you? A. Yes, sir. Q. And there has been nothing come up to change your mind since then, has there? A. No, sir. Q. You are still of that opinion, are you? A. Yes, sir. Q. Now, that opinion is still formed in your mind, is it not? A. Yes, sir. Q. And it would take considerable evidence to change your mind, would it not? A. Yes, sir. Q. You believe, do you, that the defendant should prove to this court and jury that he is not guilty of that charge? A. No, sir. Q. What is your opinion in regard to that? The Court: You need not answer that. (Objection; whereupon the juror was challenged).' In addition to the fact that the further examination elicited the statement that the witness did not know who it was that was charged with killing the woman, and did not know whether the newspaper account was true or not; that, notwithstanding what he had read, he had no opinion as to the guilt or innocence of the defendant, and that what he had read was a mere matter of news,--the testimony elicited by the attorney for the defense is not in any way calculated to show any bias or prejudice on the part of the juror. The substance of the whole examination was that he had read in a newspaper that a woman was killed, and believed from the reading of the account that the person...