State v. Brunn

• Decision Date: 02 November 1927
• Docket Number: 20657.
• Citation: 145 Wash. 435,260 P. 990
• Court: Washington Supreme Court
• Parties: STATE v. BRUNN.

260 P. 990

145 Wash. 435

STATE v. BRUNN.

No. 20657.

Supreme Court of Washington, En Banc.

November 2, 1927

Appeal from Superior Court, King County; Frater, Judge.

On rehearing, reversing former opinion in part and affirming judgment. Judgment of trial court reversed, and cause remanded.

For former opinion, see 258 P. 13.

Adam Beeler and John J. Sullivan, both of Seattle, for appellant.

Ewing D. Colvin, of Seattle, for the State.

TOLMAN. J.

This case was heretofore heard by a department of this court, and the opinion will be found in 258 P. 13, to which reference is made for a statement of the facts and issues.

Upon the principal question of the joinder of counts and the construction to be placed on chapter 109, Laws of 1925, the appellant cited three authorities from common-law states, and the respondent was content to review those authorities, with a view of distinguishing them upon the facts, and to rely upon what was thought to be a waiver of the point by the appellant. If, either in the briefs or on oral argument, anything was said which should have called our attention to what is now presented, it was so obscure as to entirely escape our notice.

By the petition for a rehearing, joined in by several prosecutors from other counties, we were for the first time informed that our statute was taken almost word for word from a federal statute enacted in 1853, and which has been construed by the federal courts in many cases. The federal statute reads:

'When there are several charges against any person for the same act or transaction, or for two or more acts or transactions connected together, or for two or more acts or transactions of the same class of crimes or offenses, which may be properly joined, instead of having several indictments the whole may be joined in one indictment in separate counts and if two or more indictments are found in such cases, the court may order them to be consolidated.' Mason's U.S. Code Ann. Title 18, § 557 (18 USCA § 557).

Columns of annotations are given by Mason, citing the numerous cases in the federal courts where the statute has been mentioned or construed. It will be observed that, except to pluralize it and to insert the word 'informations' in addition to the word 'indictments,' our statute follows the federal in exact form.

It is a familiar rule, requiring no citation of authority, that statutes adopted from other jurisdictions which have been construed by the proper authority before such adoption, will be considered as adopted with the construction already placed upon them, and it seems necessary to inquire only as to what the federal courts have said. In Pointer v. United States, 151 U.S. 396, 14 S.Ct. 410, 38 L.Ed 208, Mr. Justice Harlan said:

'Although the two murders in question are alleged to have been committed by the defendant on the same day, and in the same county and district, it does not affirmatively appear from the indictment that they were the result of one transaction, or that they were 'connected together.' But the indictment does show upon its face that the two offenses are of the same class or grade of crimes, and subject to the same punishment. Could both crimes properly be joined in one indictment, in separate counts? The statute does not solve this question, but leaves the court to determine whether, in a given case, a joinder of two or more offenses in one indictment against the same person is consistent with the settled principles of criminal law. If those principles permit the joinder of two or more felonies in the same indictment, in separate counts, then the joinder in question here was proper. * * *

'While recognizing as fundamental the principle that the court must not permit the defendant to be embarrassed in his defense by a multiplicity of charges embraced in one indictment and to be tried by one jury, and while conceding that regularly or usually an indictment should not include more than one felony, the authorities concur in holding that a joinder in one indictment, in separate counts, of different felonies, at least of the same class or grade, and subject to the same punishment, is not necessarily fatal to the indictment upon demurrer or upon motion to quash or on motion in arrest of judgment and does not, in every case, by reason alone of such joinder, make it the duty of the court, upon motion of the accused, to compel the prosecutor to elect upon what one of the charges he will go to trial. The court is invested with such discretion as enables it to do justice between the government and the accused. If it be discovered at any time during a trial that the substantial rights of the accused may be prejudiced by a submission to the same jury of more than one distinct charge of felony among two or more of the same class, the court, according to the established principles of criminal law, can compel an election by the prosecutor. That discretion has not been taken away by section 1024 of the Revised Statutes. On the contrary, that section is consistent with the settled rule that the court, in its discretion, may compel an election when it appears from the indictment, or from the evidence, that the prisoner may be embarrassed in his defense, if that course be not pursued.

'In the present case we cannot say, from anything on the face of the indictment, that the court erred or abused its discretion in overruling the defendant's motion to quash the indictment or his motions for an election by the government between the two charges of murder. The indictment showed that the two murders were committed on the same day, in the same county and district, and with the same kind of instrument. These facts alone justified the court in forbearing, at the beginning of the trial, and before the facts were disclosed, to compel an election by the prosecutor between the two charges of murder. When, however, the evidence was concluded--indeed, as soon as the defendant testified in his own behalf--the wisdom of the course pursued by the court became manifest, for it appeared that the two murders were committed at the same place, on the same occasion, and under such circumstances, that the proof in respect to one necessarily threw light upon the other. The accused and the two men alleged to have been murdered were companions in traveling, and were together, in camp, at the place where the killing occurred. The killing of Vandiveer immediately preceded that of Bolding. There was such close connection between the two killings in respect of time, place, and occasion that it was difficult, if not impossible, to separate the proof of one charge from the proof of the other. It is, therefore, clear that the accused was not confounded in his defense by the union of the two offenses of murder in the same indictment, and that his substantial rights were not prejudiced by the refusal of the court to compel the prosecutor to elect upon which of the two charges he would proceed.'

In Williams v. United States, 168 U.S. 382, 18 S.Ct. 92, 42 L.Ed. 509, the same justice said:

'It is assigned for error that the district court consolidated the two cases, and tried them at the same time and by the same jury. This objection is without merit. By section 1024 of the Revised Statutes it is provided: 'When there are several charges against any person for the same act or transaction, or for two or more acts or transactions connected together, or for two or more acts or transactions of the same class of crimes or offenses, which may be properly joined, instead of having several indictments the whole may be joined in one indictment in separate counts; and if two or more indictments are found in such cases, the court may order them to be consolidated.' The accused having been charged with different acts or transactions 'of the same class of crimes or offenses,' it is scarcely necessary to say that the transactions referred to in the indictments, being of the same class of crimes could properly, that is, consistently with the essential principles of criminal law, be joined in one indictment against a single defendant without embarrassing him or confounding him in his defense. Pointer v. United States, 151 U.S. 396, 400 [14 S.Ct. 410, 38 L.Ed. 208, 211]. The plaintiff in error cites McElroy v. United States, 164 U.S. 76 [17 S.Ct. 31, 41 L.Ed. 355], as sustaining his objection to the consolidation. This is a misapprehension. The inquiry in that case was 'whether counts against five defendants can be coupled with a count against part of them, or offenses charged to have been committed by all at one time can be joined with another and distinct offense committed by part of them at a different time.' It was held that the statute did not authorize that to be done. The Chief Justice, speaking for the court, said: 'It is clear that the statute does not authorize the consolidation of indictments in such a way that some of the defendants may be tried at the same time with other defendants charged with a crime different from that for which all are tried.' Here the indictments were against the same person, the offenses charged were of the same kind, were provable by the same kind of evidence, and could be tried together without embarrassing the accused in making his defense. If the offenses could be joined in one indictment it would follow, under the statute, that separate indictments could, in the discretion of the court be consolidated and tried at the same time and before the same jury. Nothing in the record shows that the consolidation of these cases worked or could have worked any prejudice to the defendant.'

Justice Harlan also stated the same rule in Ingraham v. United States, 155 U.S. 434, 15 S.Ct. 148, 39 L.Ed. 213. These cases, with the McElroy Case referred to and distinguished in the...