State v. Gohl

• Decision Date: 05 June 1907
• Parties: STATE v. GOHL.
• Court: Washington Supreme Court

90 P. 259

46 Wash. 408

STATE v. GOHL.

Supreme Court of Washington

June 5, 1907

Appeal from Superior Court, Chehalis County; Mason Irwin, Judge.

Wm Gohl was convicted of organizing, maintaining, and employing an armed body of men, and he appeals. Affirmed.

Marquis & Shields, for appellant.

E. E Boner and W. I. Agnew, for the State.

RUDKIN, J.

The appellant was convicted of the crime of organizing maintaining, and employing an armed body of men, in violation of section 7085, Ballinger's Ann. Codes & St., and from the judgment and sentence of the court the present appeal is prosecuted.

The trial court overruled a demurrer to the information, and upon this ruling the first assignment of error is predicated. The only question raised by the demurrer is the validity of the act under which the information was filed; the appellant contending that it is violative of section 24 of article 1 of the Constitution, which declares that 'the right of the individual citizen to bear arms in defense of himself or the state shall not be impaired.' A constitutional guaranty of certain rights to the individual citizen does not place such rights entirely beyond the police power of the state. The freedom of speech and of the press guarantied by the Constitution of the United States and the Constitutions of the several states has never been construed to carry with it an unbridled license to libel and defame. Nearly all the states have enacted laws prohibiting the carrying of concealed weapons, and the validity of such laws has often been assailed, because denying to the citizen the right to bear arms; but we are not aware that such a contention has ever prevailed except in the courts of the state of Kentucky. Besides, the constitutional provision quoted does not stand alone. It is followed by the express provision that it shall not be 'construed as authorizing individuals or corporations to organize, maintain or employ an armed body of men'--the exact language of the act under which the information was filed. Counsel argue that the act is too sweeping in its terms; that it forbids the organization maintenance, or employment of an armed body of men for any purpose whatever; that it exempts no military organization; that high school cadets cannot organize for the purpose of drill; that the sheriff cannot organize a posse, etc. It will be time enough to consider these questions when they arise, but we might suggest at this time that the statute has no application to bodies of men armed by the state or by its authority. We are satisfied that the statute is free from constitutional objection, and the demurrer was properly overruled.

The denial of a challenge for cause interposed to the juror Coats is the next error assigned. We will say in passing that this juror was afterwards excused by the appellant on peremptory challenge, and did not sit in the case; but inasmuch as the appellant exhausted all his peremptory challenges, we will assume that the question of the juror's qualification is properly before us. Our attention is directed to the answers given to some eight or ten questions propounded to this juror by the appellant, and from these answers it is argued that the juror was not qualified. The questions thus propounded were based largely on assumption and facts which find no support in the record before us, and the entire testimony of the juror must be considered in this connection. He had no knowledge of the facts in the case, no opinion as to the guilt or innocence of the accused, and it must be conceded that he was in all respects a qualified juror, unless disqualified by actual bias. Actual bias is defined by our statute as 'the existence of a state of mind on the part of a juror in reference to the action, or to either party, which satisfies the trier, in the exercise of a sound discretion, that he cannot try the issue impartially and without prejudice to the substantial rights of the party challenging.' Ballinger's Ann. Codes & St. § 4983. Considering the examination of the juror as a whole, we cannot say that the trial judge who heard his testimony and observed his demeanor abused the discretion vested in him by law.

The third and fourth assignments are that the court erred in admitting any testimony under the information, and in admitting the testimony of the witness Hansen as to happenings on the trip down the bay before the corpus delicti was proved. The former objection has already been considered under the first assignment of error, and, as to the latter, it is only necessary to say that the order of proof rests in the sound discretion of the trial court.

The next assignment is that the court erred in refusing to direct a verdict of acquital at the close of the state's case. In support of this motion the appellant contends that the proof failed to show that he either organized, maintained, or employed the armed body of men in question. For the purposes of this appeal, it may be conceded that he neither organized nor maintained the men; and, if the word 'employ' in the statute is used in the sense of 'to hire'--in other words, if it was incumbent on the state to show that the relation of master and servant existed between the appellant and the armed men--the state has failed in its proof. But is the meaning of the word 'employ' thus restricted? The act under which the information was filed recites that the state has provided for and maintains an efficient military and police force ample for the protection of her citizens in their persons and property, and then proceeds to declare that it shall be unlawful for any person corporation, or association of persons, or agents of any person, or member, agent, or officer of any corporation or association of persons, to...