State v. Gaines

• Decision Date: 28 July 1927
• Docket Number: 20614.
• Citation: 144 Wash. 446,258 P. 508
• Parties: STATE v. GAINES.
• Court: Washington Supreme Court

258 P. 508

144 Wash. 446

STATE v. GAINES.

No. 20614.

Supreme Court of Washington, En Banc.

July 28, 1927

Appeal from Superior Court, King County; Robert M. Jones, Judge.

Wallace C. Gaines was convicted of murder in the first degree, and he appeals. Affirmed.

Robert Macfarlane and John D. Carmody, both of Seattle, for appellant.

Ewing D. Colvin and Ethan Allen Peyser, both of Seattle, for the State.

MAIN J.

The defendant was charged by information with the crime of murder in the first degree. The trial resulted in a verdict of guilty as charged and a finding by the jury that the death penalty should be inflicted. Motion for a new trial and in arrest of judgment being made and overruled, judgment was entered upon the verdict, and the defendant appeals.

On the morning of June 17, 1926, the body of Sylvia Gaines, a young woman approximately 21 years of age, was found near the north shore of Green Lake in the city of Seattle. Some time during the previous night she had been murdered; the attack being first made by chocking and then by beating on the head with a rock. Her body was nude, with the exception of a sanitary belt and stockings. The doctors testified that the choking would have been sufficient to cause death by strangulation even though there had been no beating upon the head with the rock. Some days thereafter the appellant was arrested and charged with the murder of Sylvia Gaines who was his daughter. Sylvia was born in the state of Massachusetts in 1904. In 1909 her father, the appellant left her and her mother and came to the state of Washington. Some time thereafter the father and mother were divorced. For a few months after coming to the state of Washington the appellant sent money to his then wife. In September, 1925 Sylvia, having graduated from Smith College, came to the state of Washington to visit her father, to whom she was then a practical stranger. They had not seen each other since the year 1909 when the father came to this state. Four or five years prior to this the appellant had remarried, and he and his wife were residing in a small house in which there was only one bedroom, but there was a couch in the living room. When Sylvia came, she used the couch as a bed, and the appellant and his wife occupied the bedroom. The relations of the parties in time became not pleasant, there were frequent quarrels, and the wife, being not satisfied with the situation, during the latter part of November, 1925, attempted suicide. At this time the appellant and Sylvia were threatening to leave the home and get an apartment. The evidence offered by the state shows that from some time in November until the time of the murder of Sylvia illicit relations had existed between her and the appellant. The gruesome and revolting details surrounding and preceding the commission of tne crime will not be set out herein any further than is necessary to an understanding of the questions presented. Further facts will be stated in connection with the particular questions to which they may be pertinent and relevant.

The first question is whether there was prejudicial error in the refusal of the trial court to permit the appellant's counsel, prior to the trial, to see and talk with Louis Stern, one of the state's witnesses. After the information had been filed, the state furnished the appellant a list of the witnesses which was then known and which were expected to be called to testify. One of these was Stern. About two weeks prior to the trial, the appellant made a motion supported by affidavit seeking permission to interview and talk with this witness. Stern had been arrested as a material witness, and was then held in custody in the King county stockade. The request to interview and talk with the witness was refused. Upon the trial Stern was called by the state and gave damaging testimony against the appellant. In part he testified that on the night of June 16, at about 9:30 o'clock, the appellant came to his house, and he testified that the following occurred:

'He (appellant) said he wanted a drink. He said that, if what happened to him had happened to me, I would want a drink too. I said, 'What's the matter?' He said, 'You know what I have always told you, that, if any one in my house told me when I should come and go and when I should drink and how much, why I would kill 'em.' I said, 'Why, what's happened, Bob?' He said, 'Well, that's what's happened. I said, 'What's the matter?' He said 'That's what's the matter.' Then he sat on the bed and held his head in his hands. He seemed to be looking at something, and then again he seemed to be looking at something else, and then Charlie Clark and Mrs. Matthauser came in.'

Stern lived near the residence of the appellant, and was a close friend and chum. On June 23, after Stern had been taken into custody, he made substantially the same statement in the sheriff's office in the presence of the appellant and one of his attorneys. It is true that at that time the attorney had just been called into the case and had had no opportunity for investigation or preparation. Upon the trial Stern testified to some other facts of minor importance, but the vital part of the testimony that he gave upon the trial was disclosed in the interview in the sheriff's office on June 23.

In State v. Storrs, 112 Wash. 675, 192 P. 984, 197 P. 17, it is held, so far as here material, (a) that, whether a defendant's attorney will be permitted to interview a state's witness then in custody is a matter which rests largely in the discretion of the trial court; and (b) that, even though there be a refusal to interview which amounts to an abuse of discretion, this will not be reversible error unless the defendant is prejudiced thereby. In the recent case of Atkins v. State, 115 Ohio St. 542, 155 N.E. 189, the Supreme Court of Ohio approves and substantially adopts on this question the majority view of this court in the Storrs Case.

Assuming, without deciding, that the action of the trial court in refusing permission to interview the witness Stern was an abuse of discretion, yet it does not appear that the appellant was prejudiced thereby. As stated, the vital and damaging part of his testimony had already been disclosed, and it does not appear that the appellant was in any way prejudiced in not being able to meet the other facts of less importance which were testified to by Stern. The witness being known to the appellant and the most vital part of his testimony having been disclosed, the appellant had ample opportunity to inquire into his habits, character, and standing.

The cases relied upon by the appellant are upon different facts, and are subject to material distinctions. In State v. Papa, 32 R.I. 453, 80 A. 12, the question arose upon a new trial where it was claimed that the trial court had committed error in commenting in the instructions to the jury upon the conduct of the defendant's attorney in interviewing one of the state's witnesses prior to trial. There was no question there, as here, as to whether the party accused had been prejudiced by being refused opportunity to interview a witness. In the case of Exleton v. State (Okl. Cr. App.) 235 P. 627, it was held that under the particular facts of that case the defendant was prejudiced by the refusal of the court to permit the interview of a witness in custody who was an accomplice to the one open trial. It was there recognized that 'under other conditions this denial of the right to interview might not be an abuse of discretion.' In the case of State v. Gangner, 73 Mont. 187, 235 P. 703, the question arose upon a motion for a new trial, the defendant claiming newly discovered evidence. A robbery had been committed, and one of the alleged robbers was on trial. One of the others testified for the state, but the third one the state did not call. He was in custody. The defendant sought to interview him, but was denied the privilege. It was discovered after the trial that his evidence would be favorable to the defendant. It was held that the defendant was entitled to the benefit of the use of this evidence as newly discovered.

While we do not commend the ruling of the trial court in this case, it does not furnish an error for which a new trial should be ordered.

The second question relates to the admission of the evidence of the relation existing between the appellant and his daughter. It is claimed by the appellant that this evidence should have been rejected because it tended to prove a collateral crime, that of incest. The state says that the evidence was admissible for the purpose of showing motive. The general rule is that, when the defendant is charged with a particular crime, evidence of a collateral crime is inadmissible. This rule, however, is subject to a number of exceptions one of which is that evidence of the collateral crime is proper for the purpose of showing motive. Before evidence of the collateral crime can be received, there must be some causal relation or natural connection between that crime and the one for which the defendant is being tried. State v. Hakon, 21 N.D. 133, 129 N.W. 234; State v. Beam, 184 N.C. 730, 115 S.E. 176. Evidence of the existence of a motive or a lack thereof for the commission of any particular crime is often of much importance in determining whether the defendant committed the crime with which he is charged, and this is especially true where, as in this case, the state relies upon circumstantial evidence. People v. Bowers, 1 Cal. App. 501, 82 P. 553; People v. Harris, 136 N.Y. 423, 33 N.E. 65. In the case last cited it is said:

'The argument against the admissibility of the evidence of the witness Latham presents more difficulty, perhaps, at first glance; but, when we consider the importance of

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