State v. Clark

• Decision Date: 04 April 1904
• Citation: 76 P. 98,34 Wash. 485
• Parties: STATE v. CLARK.
• Court: Washington Supreme Court

76 P. 98

34 Wash. 485

STATE v. CLARK.

Supreme Court of Washington

April 4, 1904

Appeal from Superior Court, Thurston County; O. V. Linn, Judge.

Charles Chark was convicted of murder in the first degree, and appeals. Affirmed.

Israel & Mackay, for appellant.

Frank C. Owings, for the State.

MOUNT, J.

Appellant was convicted of the crime of murder in the first degree, and sentenced to death. From this judgment he appeals.

The facts are, briefly, as follows: On January 20, 1903, the appellant, Charles Clark, and Leila Page were living together in a house of prostitution in the city of Olympia. Leila Page was the mistress of the house. They had been so living for about a year. On the date named appellant and Leila Page, at about 4:30 o'clock in the morning, retired to their bedroom. They had both been drinking, and she was sick. During the day and night of the 19th of January they had been quarreling on account of an intimacy existing between Leila Page and one Nate Kirkendall. Appellant had threatened her life. Soon after they retired to their room, Leila Page requested Cleo Reynolds, an inmate of the house occupying the next room, to order a lunch for her. The lunch was ordered over the telephone to be brought from a nearby restaurant to the room occupied by appellant and Leila Page. When the waiter brought the lunch on a tray, Leila Page was lying on the bed, with her face from the door, and with all her clothes on, apparently asleep, breathing heavily. Appellant was standing in the middle of the room, with his coat, vest and hat off. He took the tray, and placed it on the floor and said to the waiter that he had no money. He called to Cleo Reynolds, and asked her to pay for the luncheon. The waiter thereupon left the room, and the door was bolted after him from within. Cleo Reynolds paid for the luncheon, and the waiter went away. Cleo Reynolds went back to her room, and soon fell asleep. She heard nothing more until about 8:30 o'clock in the morning, when she was awakened by the appellant calling her in a muffled voice. She thereupon got up and went to the door of the room occupied by the appellant and Leila Page, but the door was fastened, and she could not get in. She could hear appellant speaking her name. She thereupon asked him to open the door. After a short time appellant succeeded in unbolting the door, which was opened, and appellant fell across the open doorway, striking his head against the door jamb. His hands and face and clothes were covered with blood. He was apparently unconscious. He was dressed as above stated. Leila Page was lying on the bed, dead. All her clothes were on, as above described. Her forehead had been crushed as with the back of an ax, and a long gash was cut across her throat from about the center of the neck to the right ear. Appellant had several cuts in his neck and throat and on his head. His mouth was burnt as if with carbolic acid. There was no evidence in the room of any struggle. An ax, a small penknife covered with blood, and a small bottle containing carbolic acid were found in the room. A carving knife was also found under the cover of a settee. Before appellant was taken from the scene, he was told by a policeman that he was going to die, and was asked who did the killing. He at first said he did not know. Upon being asked if he was sure, 'said he thought Nate did it.' Appellant was thereupon taken to a hospital, and soon recovered from the effects of his wounds. In June, 1903, he was put upon trial under an information charging him with murder in the first degree. His defense was insanity. His version of the affair is as follows, quoting from the record: 'Q. Now, I will direct your attention to the night before she died--Sunday night--and I will ask you to start from that point, and detail everything that you did as you remember it, in connection with Leila Page, or regarding her, and everything that was done that night and the next day, describing your conditions and feelings during that time. Just tell the jury all about it. A. Well, Sunday night I went down to the house about midnight, and she was not there. The girls said she was over to the 'Star.' Q. What did you do? A. I went to bed and went to sleep, and she came in some time in the morning, I think, along about three or four o'clock. I do not know just what time. She said something. I don't know what she said. And then she put on her clothes and went out, and I don't know where she was going or where she went. Then I went back to sleep. The next morning I got up about noon. She was not in bed, and I looked in the other rooms, and she was not there, and I asked Cleo if she had seen her, and she said 'No.' I went down to the wine closet, and got a drink of brandy, and went to eating my breakfast, and went up town. I went to Frank Dickerson's saloon. I was working there. And I asked Frank if he had seen her, and he said he had not. The night before I asked him---- I opened up the games we were working at and went to work. I thought I would wait until evening, but I could not wait. I felt pretty nervous, and went out to the bar and got a drink of brandy. Then I thought that Nate roomed at the Union Block, and she might be up there. I asked the butcher if he had seen her that morning, and he said that he had; that she had been there, and went on up toward Swantown. I walked over as far as the Union Block, and then I walked up and down in front of the Union Block a few times. I thought I must be mistaken, and went back to the house. I went back to the house, and they said she had been there and gone out again. I went back. I don't know how many times I made the trip. It seemed like a dream. I couldn't get any information. I finally went to the Union Block, but I don't remember going to the Union Block twice. I remember going to Mrs. Hubbard's, and finally Mr. Wentz came in with the tray in the room where she was--Cecil Knight's room--and she was lying there on the bed; and I tried to rouse her, and told her to get up, and I had her by the shoulder, and she hit my hand and my finger nail scratched her neck. I don't remember what was done or what was said either, but we went home together. She told me she had been at the Union Block the night before with Nate Kirkendall. I asked her if she intended to leave me, and she said she didn't. Then we embraced, and I kissed her several times, and I went downstairs, and she went downstairs and left the house. She went over to the 'Star.' I guess it is the 'Wigwam' now. And I went over and asked if she was there, and they said she was not. I went back to the house again, and telephoned over after a little while, and they said she was not there. I sent Cleo out to look for her, and she came back and said she was over there, and wanted me to come over for her. I was not drunk then, and hadn't been drinking any time during the day. I have been drunk, and I know what the feeling is. I don't say that the statements made by the witnesses is not so, aren't true, and didn't happen. If they did happen, I have no recollection of it. We went upstairs to go to bed. She told Cleo to order some lunch. I remember that quite well. I went into the room. I didn't know where she was at that time, and I started to undress myself. I don't remember the boy bringing the tray in, or who let him in. I don't remember anything of that. Then again I was lying in the hall, and then again I was being carried out, and then again some one poking something down my throat, and then again I came to and found myself lying in a strange bed, just like a person would wake up out of a dream.' This is the substance of the evidence on the part of the defense. Other facts necessary to an understanding of the points presented will be stated hereafter.

Appellant insists, first, that the court erred in not requiring the attorney for the state to examine the jurors as to their general qualification. It appears that the individual jurors were examined first by the prosecutor for actual and implied bias and passed for cause; that thereupon they were examined by counsel for appellant. After the state had exercised all its peremptory challenges, and the appellant all of his peremptory challenges but one, and had waived that one, appellant objected to the whole panel upon the ground that the prosecutor had not examined the jurors as to their general qualification. This objection was overruled by the court. Counsel argues that, because the statute provides that no person is competent to act as a juror unless he is (1) an elector of the state; (2) a male inhabitant of the county for the year next preceding the time he is called; (3) over 21 years of age; (4) in possession of all his faculties, and of sound mind; (5) able to read and write the English language; and (6) has never been convicted of a felony (section 5939, Pierce's Code); and because it is provided that 'the jurors having been examined as to their qualification, first by the plaintiff and then by the defendant, and passed for cause, * * *' (section 601, Pierce's Code)--it is therefore the duty of the prosecutor to examine the jurors as to their general qualifications. While it is true that persons not possessed of the qualifications named in section 5939, supra, are incompetent under the statute, it does not follow that the prosecutor may not waive his right to examine the jurors, and also waive the disqualifications named. The statute relating to the examination is simply declaratory of the rights of the plaintiff and of the defendant. Either may waive his right to qualify or disqualify the jurors. That this is true is manifest because of the provision of the next section, which is as follows: 'But no act of a grand or petit juror shall be invalid by reason of such...