State v. Carey
| Decision Date | 17 November 1896 |
| Citation | 46 P. 1050,15 Wash. 549 |
| Parties | STATE v. CAREY. |
| Court | Washington Supreme Court |
Appeal from superior court, King county; T. J. Humes, Judge.
William Carey appeals from a conviction of murder. Affirmed.
Melvin G. Winstock and John B. Wright, for appellant.
A. W Hastie and W. W. Wilshire, for the State.
The appellant was convicted in the superior court for King county of the crime of murder in the first degree and sentenced to death. From the judgment of conviction, and an order denying his motion for a new trial, he has appealed.
1. The first assignment is that the court erred in overruling his challenge for actual bias interposed to Jurors Van Wort Roberts, and Osborn. As to Juror Roberts, it is sufficient to say that the action of the court in overruling the challenge was without prejudice, even if erroneous, inasmuch as it appears from the record that he was subsequently excluded upon the peremptory challenge of the prosecution. From a consideration of the voir dire examination of Jurors Van Wort and Osborn, we are satisfied that they were competent and impartial jurors. Counsel for the defendant cite the cases of State v. Murphy 9 Wash. 204, 37 P. 420, State v. Wilcox, 11 Wash. 215, 39 P. 368, and State v. Rutten, 13 Wash. 203, 43 P. 30, decided by this court; but, in our opinion, the record in this case does not justify their claim that the question here presented is within the rule announced in any of these cases. The record in this case clearly and satisfactorily shows that no fixed or definite opinion existed in the minds of either of said jurors relative to the merits of the case, but only a vague, indefinite, or merely floating impression, based upon a newspaper report of the case, or heard at about the time of the commission of the supposed crime. The ruling of the lower court may well be sustained without in any wise infringing upon anything that is laid down in any of the cases above referred to.
2. It is next objected that there was a variance between the allegations of the information and the proof, in this: The information charges that the appellant "purposely and of his deliberate and premeditated malice killed one Lucy Williams, by then and there purposely, and of his deliberate and premeditated malice, striking and beating the said Lucy Williams, thereby inflicting in and upon the said Lucy Williams several mortal contusions, fractures, and wounds, with a heavy, blunt instrument, which he, the said William Carey, then and there had and held in his hands; a more particular description of which said heavy blunt instrument is to the said prosecuting attorney unknown"; and it is contended that the record shows that the "heavy, blunt instrument" was a certain broken oar found in the possession of the appellant, and which oar was offered by the prosecution, and received in evidence; and that it further appears that this oar was in possession of the prosecution, and that the prosecuting attorney had full knowledge of its existence, at the time of filing the information in question. Counsel has cited numerous cases in which it has been held that, where an indictment charges a defendant with committing an offense against the person or property of a person unknown, and it appears at the trial that the name of the person was in fact known to the grand jury, the defendant must be acquitted. Com. v. Blood, 4 Gray, 31; State v. Stowe (Mo. Sup.) 33 S.W. 799; Presley v. State, 24 Tex.App. 494, 6 S.W. 540; Com. v. Thornton, 14 Gray, 41. The reason is found in the rule requiring fullness and precision in charging an offense, and that the identity of the offense charged with that upon which the conviction is sought should be established upon the trial. An allegation in an indictment or information that the name of a person or a fact necessary to be alleged is unknown is permissible only from necessity. But, however sound may be the rule for which counsel contends, we do not think that it is applicable to the present case. It is true that it is charged in the information that the homicide was committed by means of striking and beating the deceased with "a heavy, blunt instrument, a more particular description of which is to the prosecuting attorney unknown"; but it is was not established by the evidence on the trial what that instrument really was, or that its description was known by the prosecuting attorney at the time of filing the information or up to the time of the trial. There was evidence from which the jury might well have found that the blows or wounds causing death were inflicted with an oar, and there were in all three oars introduced in evidence,-one by the state, and two by the defendant. But we think that it cannot with certainty be told from the record that the wounds were inflicted with either or all of them; while, upon the other hand, from the condition and appearance of the deceased, and the expert and other testimony, there was abundant evidence to warrant the finding that death was occasioned by means of wounds inflicted "with a heavy, blunt instrument" of an unknown description.
3. It is urged that the court committed error in refusing to instruct the jury, as requested by the defendant, upon the subject of the corpus delicti. Counsel argues that there was evidence tending to show that death was occasioned by a severe fall which the deceased had sustained on the night in question, and not by the means charged in the information and that it was the defendant's right to have the jury instructed upon any theory of the case having evidence in its support. Conceding the fact and the law to be as contended for by counsel, we think that no error was committed in refusing the particular instruction requested, because the subject-matter was included in and covered by the general charge, in which the jury were told that, if it was "possible to account for the death of the deceased upon any reasonable hypothesis other than that of the guilt of the defendant," then it became their duty to...
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State v. Picard, 19321-3-II
...doubt. State v. Hopkins, 71 Wash.2d 10, 15, 426 P.2d 496 (1967); State v. Vance, 29 Wash. 435, 479, 70 P. 34 (1902); State v. Carey, 15 Wash. 549, 553, 46 P. 1050 (1896). Here, the court instructed the jury on reasonable doubt. Thus, Picard's contention We affirm. ARMSTRONG and HUNT, JJ., c......
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