State v. Craemer

• Decision Date: 03 July 1895
• Citation: 40 P. 944,12 Wash. 217
• Parties: STATE v. CRAEMER.
• Court: Washington Supreme Court

40 P. 944

12 Wash. 217

STATE v. CRAEMER.

Supreme Court of Washington

July 3, 1895

Appeal from superior court, King county; T. J. Humes, Judge.

Henry Craemer was convicted of murder in the first degree, and appeals. Affirmed.

Daniel T. Cross and Relfe & McCutcheon, for appellant.

A. W Hastie, Pros. Atty., and W. W. Wilshire, Dep. Pros. Atty for the State.

GORDON J.

Appellant Henry Craemer, was convicted in the superior court of King county 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.

The record discloses that appellant was arrested on August 14, 1894; on August 17, 1894, he was taken before the committing magistrate for the purpose of a preliminary examination; that, agreeably to the right conferred by statute in such cases, he waived examination, and was committed without bail; that on August 25, 1894, he was arraigned in the superior court, upon information filed therein charging him with murder in the first degree for the killing of Philipina Mueller on August 13, 1894; that to the crime so charged he entered his plea of "Not guilty," and the court thereupon fixed September 7, 1894, as the time for trial. It further appears that from the time of his arrest he was attended by counsel. The alleged errors relied upon for a reversal of the conviction will be considered in the order in which they appear in appellant's brief.

The first error assigned is the overruling of the motion by appellant for a continuance. This motion was based on the affidavits of himself and Mary Craemer, his wife, and N. Soderberg, his attorney. The continuance was sought for the alleged purpose of securing the testimony of one Jack Quincy, by whom appellant in his affidavit stated that he could show that he (appellant) went to Tacoma (distant some 30 miles from the scene of the killing) on the afternoon of the day of the alleged murder, to meet said Quincy; that said Quincy and appellant spent a portion of the afternoon of said day in Tacoma, and that during said time Quincy paid appellant the sum of $35; that said Quincy was a miner, with no fixed place of abode, and was, at the time when said affidavit was made, supposed to be absent somewhere in the Cascade Mountains, in the neighborhood of Monte Cristo, in Snohomish county. The affidavit of Soderberg was to the effect that, some seven days before the trial, he caused two letters to be addressed to the said Quincy, one mailed to Tacoma, Wash., and the other to Monte Cristo; that four days later he caused a subpoena to be issued for said Quincy, and placed the same in the hands of the sheriff of Snohomish county for service, without any definite direction as to where said alleged witness could be found. This, in brief, constituted the showing made for a continuance, and we think that it failed to meet the requirements of the statute respecting diligence. The migratory habits of Quincy being well known to appellant, the necessity of locating and keeping him located in order to secure his testimony was a matter that due diligence required of him and his counsel. Accused of this crime within a few hours after its alleged commission, and within less than one day from the time when he claims to have been in the company of Quincy, he apparently made no effort to secure his attendance, or to keep advised of his wanderings. In this connection we may add that the affidavits generate a doubt, which is strengthened by the circumstances established upon the trial, as to the actual existence of the so-called "Quincy"; but, be that as it may, we do not think that the appellant used such reasonable means as were within his power to secure the attendance of the so-called "Quincy," and the motion for a continuance was properly denied.

It appears from the evidence that the infant child of the deceased was murdered at the same time, and evidently by the same hand that destroyed the mother's life; and it is next contended that the court erred in admitting evidence of the killing of the babe. The general rule is that, in the trial of a defendant for a specific offense, evidence tending to show the commission of other distinct offenses is inadmissible. But this general rule admits of many exceptions. One of these exceptions is that, where two crimes are connected, both may be proved. Kennedy v. State, 107 Ind. 144, 6 N.E. 305. Here the two homicides were so intimately connected with regard to time, place, circumstances, and the means employed to effect death, that proof of the killing of the babe was necessarily involved in a complete description of the offense charged against the prisoner, and constituted a circumstance in the history of the crime charged, incapable of being separated from it in describing the condition and appearance of the mother and the premises where the killing occurred. But, aside from this, it appears from the record that no objection of any character was made to the reception of this evidence at the trial, and the settled practice does not admit of its being urged for the first time upon appeal. Sears v. Railway Co., 6 Wash. 227, 33 P. 389, 1081; People v. Baird (Cal.) 38 P. 633.

The could did not err in admitting the testimony of Mrs. Smith and Laura Cushman, witnesses for the state, who testified to having seen the prisoner in the brier bushes adjoining the deceased's residence 13 days prior to the homicide. The theory of the state was that robbery was the motive leading to the murder, and the presence of the appellant at that time was a circumstance which, we think, the jury was entitled to consider.

Nor was it error to permit the witness McCormack to testify to finding a revolver upon the premises of the deceased some 18 days after the homicide. This revolver was identified as the property of the appellant, and its discovery was also a circumstance...