State v. Cushing

• Decision Date: 10 September 1897
• Citation: 50 P. 512,17 Wash. 544
• Parties: STATE v. CUSHING.
• Court: Washington Supreme Court

50 P. 512

17 Wash. 544

STATE v. CUSHING.

Supreme Court of Washington

September 10, 1897

Appeal from superior court, Spokane county; Norman Buck, Judge.

Theodore Cushing was convicted of murder in the second degree, and appeals. Affirmed.

Blake & Post and Winston & Winston, for appellant.

J. W Feighan, for the State.

ANDERS J.

Appellant was tried upon an information charging him with murder in the first degree by shooting and killing one Thomas King in the county of Spokane. He was convicted of murder in the second degree, and sentenced to the penitentiary for the term of 10 years, and upon appeal to this court the judgment was reversed, and the case remanded for a new trial. Upon the second trial he was convicted of manslaughter, and sentenced to the penitentiary for the term of seven years, and he has again appealed to this court.

Appellant admits having killed King, but claims that he did it in self-defense. The facts disclosed by the record are briefly these: King was in the employ of appellant as an ordinary farm laborer on appellant's premises near Spokane from November, 1894, until May 14, 1895, the day of the homicide. During this time King boarded and lodged on an adjoining farm with one William Seaton. On the morning of May 14th, King went with Seaton to the Cushing farm at about 7 o'clock and assisted Mr. Hampton, appellant's father-in-law, in milking the cows. But it does not appear that he did anything thereafter. During that forenoon Mr. Seaton was engaged in taking up, cleaning, and replacing carpets, and appellant during the same time, was employed in and about the barn yard and poultry yard in caring for his poultry. He and King were seen together several times during the forenoon, but there seems to have been no quarreling seen, or loud or violent language heard by either Seaton or Mr. Hampton who was also about the house and premises until some time near the middle of the forenoon. At about half past 11 o'clock, or a little later, Seaton concluded to go home to prepare his dinner. Having passed out of the house through the west door, he noticed King standing at or near the southwest corner of the house, and asked him if he was going home, and King replied, in an ordinary tone of voice, "No, I am not going until twelve o'clock." At this time appellant, Cushing, was at the well, some distance north of the door above mentioned. Seaton went in a northerly direction, walking rapidly for about 150 yards, when he met Mr. Hampton, who was unloading a load of gravel on the road. He stopped, and spoke to Mr. Hampton, and almost immediately heard the report of a gun in the direction of the house, and a very short time thereafter he heard a second report, and immediately Mrs. Cushing and her mother, Mrs. Hampton, were heard screaming. Both Seaton and Mr. Hampton immediately started for the house, Mr. Seaton running, as he says, "as fast as he could go," and arriving some distance in advance of Mr. Hampton. On reaching the house, he discovered King lying in a path on the east side, and perhaps a little north, of the house, wounded, bleeding, and helpless. King was then lying in the sun, and requested Seaton to take him, and put him in the shade, which Seaton accordingly did. Mr. Hampton arrived about this time, and in a few moments thereafter Cushing appeared upon the scene. King was very much "shocked and weakened," but was not unconscious. When Cushing appeared, Mr. Hampton asked him why he had done this, and brought disgrace upon the family, or words to that effect; whereupon Cushing replied: "I had to do it. I acted in self-defense. He was pursuing me with a club." King then said, "Why didn't you pay me?" Some other conversation was had at the time, but neither Hampton nor Seaton was able to recall what further was said by King or Cushing. Soon after this conversation, Mr. Hampton proceeded to make an examination of that part of the premises where the tragedy was supposed to have occurred, and he discovered a pool of blood about the size of one's hand near a little pine tree standing about 24 feet south of the center of the house, and at the same place picked up a piece of ordinary lath, with blood stains upon it. Upon this tree there was a fresh scar or mark, which appeared to have been made by a bullet or buckshot. Before Mr. Hampton went to look for "a piece of lath," King was placed upon a sofa on the porch on the north side of the house. Seaton then removed King's overalls and drawers, and discovered that the first charge that was fired had taken effect in the back portion of his thighs extending down as far as the knees. The second was found to have penetrated King's back a little below the kidneys, and about two inches to the right of the spinal column; two buckshot having passed through the body, and nine shots having struck so close together that the wounds caused by them covered a space "about the size of a dollar." No weapons of any character or description were found upon King at the time his clothing was removed, and no club or stick or weapon was found at or near where he was lying when discovered by Seaton on his return to the house. In fact, no club or stick, except the piece of lath above mentioned, was ever found by any one about the ground over which King must have traveled before he fell. In addition to the gunshot wounds which appeared upon the body of King, there was a wound about an inch or two long, and of a triangular shape, upon the left side of his head, which penetrated to the skull. This appeared to have been inflicted with some blunt instrument, and probably with the gun with which the shooting was done, as the barrel, upon examination, was found to be bent.

The above were the facts and circumstances in evidence when the state rested its case, and we have stated them somewhat minutely, for the reason that it will become necessary to advert to them hereafter. On the trial, appellant was examined as a witness on his own behalf, and testified that on the morning in question King came to the poultry house, where he was attending to his chickens, and demanded payment of his wages; whereupon defendant told deceased that he did not have the money to pay him; that he would do so on the following day, or in a day or so thereafter; that thereupon the deceased became abusive, and threatened defendant with violence; that he continued to follow defendant from place to place about the poultry yard and barn yard from about half past 7 in the morning until 11:30 a. m., when the shooting occurred. Defendant further testified that he repeatedly ordered the deceased from his premises, and that he refused to go; that King continued to become more violent, and that, becoming alarmed and fearful for his own safety, the defendant went into his house, and procured his shotgun for the double purpose of defending himself against any attack that King might make upon him, and in the belief that, finding him armed, King would withdraw from the premises; that when he appeared outside of the house with the gun the deceased rushed upon him, armed with a club uplifted in his hand; that thereupon defendant fired, aiming low, with a view to disabling him, not to kill him; that the instant the shot was fired, King raised his head up, and came at defendant with the club uplifted, and muttering curses, and defendant, thinking that King had not been hit, immediately proceeded to reload. Continuing, witness said: "During the time that I was reloading he had gotten up to just a few feet of me,-I don't think it was over eight or ten feet,-and when I fired this time he repeated his movement [that is, ducking his head, and turning his body], only this time he bent further down." King expired in about four hours after receiving the wounds.

When the cause was called for trial, there was in attendance upon the court a full panel of the regular jury, consisting of 24 men; but before the jury was completed the regular panel became exhausted, and the court, upon motion of the prosecuting attorney, ordered the drawing and summoning of another panel of 24 men from the jury list certified by the clerk of the county commissioners. The defendant objected to this proceeding, and also moved to quash the venire issued for the second panel, contending that, if any venire was to be issued at all, it should be an open one. It is now contended that the court erred in ordering the drawing of another panel, and in overruling the motion to quash the venire; and in support of his position appellant cites sections 1297, 63, 64, and 339 of volume 2 of Hill's Code, and section 3, page 140, of the Session Laws of 1895 as well as State v. Payne, 6 Wash. 563, 34 P. 317, and State v. Holmes, 12 Wash. 169, 40 P. 735, and 41 P. 887, and other cases. Section 1297 of the Code provides that, except as otherwise specially provided, issues of fact joined upon an indictment or information shall be tried by a jury of 12 persons; and the law relating to drawing, retaining, and selecting jurors, and trials by jury, in civil cases, shall apply to criminal cases. Section 63 provides that if, for any cause, the court shall see fit to set aside the venire for grand or petit jurors, an open venire may thereupon issue to the sheriff, who shall thereupon complete the panel by such open venire as speedily as possible. And in section 64 it is enacted that if, for any cause, a sufficient number of grand or petit jurors are not returned by the sheriff in the manner first herein contemplated, or if a sufficient number of grand or petit jurors are not in attendance, the court may order the panel filled by summoning a sufficient number by an open venire issued and directed to the sheriff. It will be observed that neither of the two sections last above mentioned is...