State v. Freidrich
| Decision Date | 30 April 1892 |
| Citation | 29 P. 1055,4 Wash. 204 |
| Parties | STATE v. FREIDRICH. |
| Court | Washington Supreme Court |
Appeal from superior court, King county; T. J. HUMES, Judge.
Albert Freidrich was convicted of murder, and appeals. Judgment modified.
For dissenting opinion, see 31 P. 332.
Tyler & Tyler, for appellant.
John F. Miller, Pros. Atty., for the State.
This was the second trial of the appellant for the crime of murder. The first trial was reviewed by this court, and is reported in 2 Wash. St. 358, 26 P. 976. The record shows that after the former judgment of conviction was reversed, and a new trial granted, and on the 17th day of July, 1891, the grand jury of King county presented a second indictment against the appellant, which was identical in substance with the one sustained by the decision of this court, with the exception that, whereas the name of the person killed was in the former indictment laid as "John" Scherbring, in the latter it was laid as "Julius" Scherbring. On the 12th day of September, 1891, appellant was arraigned upon the new indictment, and without any other plea or objection entered his plea of not guilty, and the case was set for trial on September 21st. The plea of not guilty was not according to the record, at any time thereafter withdrawn. But on September 16th counsel for appellant filed in the cause a lengthy document, the theory of which is not clearly apparent, and which we shall not characterize by any descriptive term. The superior court ruled upon it as a motion to "dismiss the indictment," and denied the motion; also as a demurrer to the indictment which it overruled. With the plea of not guilty remaining in force, it is apparent that all the proceedings narrated as subsequent to its entry were irregular, and not warranted by the statutes, (Code 1881, c. 85; Code Proc. §§ 1269-1294;) and when we add that no exception to any ruling of the court appears in this connection, it will be seen that it is only because of the gravity of the case and the absence of objection on the part of the respondent, that we consider the alleged error. It is conceded by the appellant to be well considered and settled law that one who has been convicted of an offense, and who, upon his own motion, in either the trial or the appellate court, secures a new trial, stands as though he had not been tried at all, and has not been put in jeopardy within the constitutional prohibitions. It is also conceded that several indictments may be returned against one defendant before his trial, all covering the same offense, and that he may be tried upon either of them, the prosecution making the election. We cannot, therefore, accede to the proposition laid down by the appellant that "the judgment in this case must be reversed, because the defendant has been once convicted on the same charge, and has been once in jeopardy." The concessions of the appellant, above alluded to, which are correct general rules in the administration of criminal law, preclude the plea of former jeopardy in this case; so that the real issue is whether, after an appeal by the defendant, and a decision sustaining the former indictment, and the granting of a new trial thereon, the state was then and thereby precluded from proceeding upon a fresh indictment. Counsel insists that no case has been found where such a course has been taken and sustained, which seems to be true; yet it may not be unlawful. He also suggests that, if this practice is sustained, there would be nothing to prevent the prosecution from trying and convicting a prisoner for manslaughter, and, after he had served his sentence, indicting and trying him for murder of the same person; or from so reindicting and trying him after his acquittal on the first charge. But the logic of this proposition fails, because in both these supposed cases actual jeopardy would have been suffered, which would bar the second prosecution. So in this case, if the conviction of the appellant be now sustained in any degree, the judgment entered against him in pursuance thereof will forever be a bar to any further prosecution. Bish. Crim. Law, §§ 1056, 1057. Indictments will not be permitted to be piled up against a defendant for the purpose of harassing or confusing him, but the discretion of the court must be appealed to for his protection. Bish. Crim. Proc. § 770.
But in this case there seems to have been an honest doubt in the mind of the prosecutor whether, if the true name of the deceased Sherbring was Julius, and not John, a fatal variance would not be developed. Whether correct or not, the new indictment stated the true fact, and it is impossible to discern in what manner the appellant was injured by it. Says the court in Com. v. Drew, 3 Cush. 279: No reason appears why this may not occur as well after a new trial has been granted by an appellate court as before.
The first exception relied upon relates to the contradiction of the witness Longstaff. This witness testifies at the first trial to having seen the accused at a certain place on Madison street, Seattle, on the evening of July 15th, the day after the alleged homicide. At this trial he stated that at the place in question he spoke to appellant, and "told him he had a pretty nice ring there," whereupon "he put his hand that way under the work bench." On cross-examination he was questioned whether he had testified at the former trial on having spoken to appellant about the ring, and he affirmed most positively that he had. Appellant's counsel maintained that he had not so testified, and sought to contradict him in that particular. There was some materiality in the matter, as the question of the identity of the person spoken to was in issue; the appellant having been arrested about noon of the following day, some 20 miles away, on the opposite side of the city. The defense, to contradict Longstaff, produced the witness Bowman, who took down the testimony at the former trial in shorthand, and furnished the same in longhand for the statement on the first appeal. He identified a duplicate of his longhand notes, and later in the progress of the case counsel proposed to read from the duplicate the former testimony of Longstaff. But the state's objection to the reading was sustained by the court, one of the grounds being the incompetency of the evidence. We do not think appellant's proposition that he should have been allowed to read the longhand notes can be sustained. He was seeking to prove a negative, viz., that Longstaff had not testified on the first trial that he had spoken to appellant about the ring on his finger. Bowman was present, and competent to testify as to that. He could have been asked whether Longstaff had testified as he claimed, and, if unable to answer without his notes, he could have been permitted to refer to them to refresh his recollection; but, independent of him, his notes had no standing in the court. State v. Baldwin, (Kan.) 12 P. 318-325. Counsel, we think, errs upon this point through his viewing Bowman as an official of the court. He cites People v. Morine, 61 Cal. 367, where the reading of reporter's notes was sustained. The only point there considered, however, was whether the oath of an official reporter to the correctness of his notes, at the trial, was equivalent to his certificate, required by statute; and the court in effect said that it was. But this was under the California statute, which makes reporter's notes, when written out and certified, prima facie a correct statement of testimony. Code Civil Proc. Cal. § 273. We have no such basis for the ruling asked.
The next exception relates to the testimony of a witness Murphy ex-chief of police. Scherbring was in his charge during the night after he was shot, and until he was sent to the hospital the next day. He lay upon a cot, vibrating between a drowsy sleep and a more or less wakeful condition, but probably at no time much more than barely sensible of his condition. The defense called Murphy to testify what Scherbring had said to him under these circumstances, on the morning of the 15th, in response to repeated questions as to who had shot him. The state objected strenuously on the ground that no such statements could be admitted as res gestæ, and therefore not at all. But the court allowed the witness to proceed, which he did as follows: ...
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