State v. George

• Decision Date: 10 June 1910
• Citation: 109 P. 114,58 Wash. 681
• Parties: STATE v. GEORGE.
• Court: Washington Supreme Court

109 P. 114

58 Wash. 681

STATE v. GEORGE.

Supreme Court of Washington

June 10, 1910

Department 1. Appeal from Superior Court, King County; Mitchell Gilliam Judge.

Arthur W. George was convicted of murder in the first degree, and he appeals. Reversed and remanded for new trial.

Thos. R. Horner and J. L. Waller, for appellant.

Geo. F Vanderveer and John F. Murphy, for the State.

CHADWICK J.

Arthur W. George, appellant, shot and killed his wife, Elizabeth George, on the 13th day of May, 1909. He was later convicted by a jury of the crime of murder in the first degree, and brings this case to our court upon several assignments of error. We shall discuss only those having merit.

After appellant had committed the crime of which he was convicted he had some negotiations with Fred H. Peterson, Esq., a member of the Seattle bar, with reference to his defense. Mr Peterson had been his attorney in a divorce suit in which a decree of divorce had been rendered nearly three years before. For reasons not now material, Mr. Peterson declined employment, and the present attorneys were appointed by the court to defend the prisoner. Upon the trial, after proving the corpus delicti, the state called Mr. Peterson as a witness 'to show,' as stated by counsel, 'there was feeling existing between the people; and I desire to prove by Mr. Peterson that he called the attention of defendant at that time to the relation that existed--that is, that he had been warned to keep away from his divorced wife after the divorce was granted; and I want to prove that the divorce was granted, by the original findings of the court.' Counsel for appellant admitted in open court that a divorce had been granted, but the court held that the fact that a decree had been rendered, and that appellant had a right to visit his children. under that decree, could not be admitted, but must be proved by the record. He accordingly admitted a copy of the decree, but rejected the findings of fact and conclusions of law when offered. Mr. Peterson was then permitted to testify that Mrs. George had objected to the frequency of appellant's visits, and that he had undertaken the role of peacemaker, and had advised appellant to make his calls upon his children less frequent, to which appellant assented, agreeing to follow his advice 'as near as he could.' Waiving the question of materiality and remoteness, it would be hard to predicate error upon the admission of this testimony if it were not for the subsequent rulings of the court. That the decree was put in evidence to show feeling or a hostile mental attitude on the part of the appellant, there can be no doubt; but accepting it as properly before the court, appellant would have the unquestioned right to rebut the presumption arising from the decree of divorce by any competent evidence. He endeavored to show by several witnesses--neighbors and friends of his wife--that the relations existing between himself and wife up to the time of the tragedy were amicable, and that there was, notwithstanding the decree of divorce, a bond of sympathy and affection between them. This was denied him. The general tenor of the evidence upon this point may be made manifest by quoting from the testimony of some of the witnesses:

Mrs. Newberry: 'Q. State if you know whether the attitude of Arthur George to Mrs. George and of Mrs. George to Arthur George in your presence and at their home was that of friendliness and kindness to each other or not. A. It was. Q. Was it such an attitude and were the actions to each other such as indicated they cared something for each other or not? Mr. Murphy: I object as calling for a conclusion. The Court: Sustain the objection. Mr. Horner: Save an exception. (Exception allowed.)'

Mrs. Smith: 'Q. During your intimacy with Mrs. George and your acquaintance with Mr. George did you ever see any actions or behavior on the part of Mr. George or of Mrs. George with the children that would indicate that there was any great affection existing between them? Mr. Murphy: I object to the question as calling for a conclusion. The Court: Sustain the objection. Mr. Horner: Save an exception. (Exception allowed.) Q. What lover-like action, if any, did you ever observe between Mr. and Mrs. George? Mr. Murphy: Same objection. The Court: Objection sustained. (Exception allowed.)'

These witnesses and others had testified that appellant had spent every Sunday with his wife and children, meeting the children at Sunday school, and taking them for a walk and afterwards remaining for dinner with the family. This is sufficient to show the attitude of the court towards the theory of the defense. Appellant was not only denied the privilege of showing that there was in fact no apparent ill feeling between him and his wife, but, when called as a witness in his own behalf, was interrogated on cross-examination by the state's attorney as to the grounds for the divorce; and it was made to appear to the jury that the divorce had, in fact, been granted upon the grounds of cruelty, the trial judge saying, over the objection of appellant, that it was proper to go into the grounds for the divorce, upon the cross-examination of appellant, to test his credibility as a witness.

If we could agree with the learned trial judge as to the grounds upon which this testimony was admitted, it might be that it would not be error. But the purpose--and it was not in any way concealed by the state--was to show that appellant had been cruel to the deceased, so that the jury might infer premeditation, deliberation, and malice. Clearly appellant had a right to rebut this evidence. It requires no argument to show that, if the state could show ill feeling existing nearly three years before the...