State v. Hall, 26058.

• Decision Date: 14 April 1936
• Docket Number: 26058.
• Citation: 56 P.2d 715,185 Wash. 685
• Parties: STATE v. HALL et al.
• Court: Washington Supreme Court

56 P.2d 715

185 Wash. 685

STATE v. HALL et al.

No. 26058.

Supreme Court of Washington

April 14, 1936

Department 1.

Appeal from Superior Court, Kitsap County; H. G. Sutton, Judge.

Leo Hall who was jointly charged with Peggy Peterson Paulos with murder, was convicted of first-degree murder, and he appeals.

Affirmed.

Everett O. Butts, of Seattle, for appellant.

R. W Miller, of Port Orchard, for the State.

MITCHELL Justice.

About April 1, 1934, the officers of Kitsap county discovered that a number of persons had been murdered at the home of Frank Flieder, in that county. Upon official investigation and autopsies, it was found that six persons had been killed; two of whom, Mrs. Eugene A. Chenevert and Magnus Jordan, died from gunshot wounds, and the other four, Mr. and Mrs. Frank Flieder, Fred Balcom, and Eugene A. Chenevert, died, each from hammer blows upon the head. The house was found to be in a horrible condition. The walls, ceilings and floors of all the rooms on the ground floor were spattered with blood. Dressers and other kinds of furniture had been ransacked, and papers and other contents scattered upon the floors. All of the victims had been bound and blindfolded. It was evident that the murders had been committed several days Before the discovery of the crime, and that the perpetrators remained in the house a number of hours after the crime was committed.

In October, 1935, Peggy Peterson Paulos, spoken of hereinafter as Mrs. Paulos made a voluntary confession to her private attorney concerning the crime, and then made and signed a written confession in the prosecuting attorney's office, in which confessions she implicated Leo Hall, stating that she was forced to take part under duress and threats of Leo Hall, who compelled her to accompany him to the scene of the crime. Shortly after her confession, she and Leo Hall were arrested and jointly charged with the crime of murder in the first degree.

The statement of the acts constituting the offense, as set out in the amended information upon which the trial was had, is as follows: 'That on or about the 28th day of March, 1934 in the County of Kitsap, State of Washington, the said defendants, Leo Hall and Peggy Peterson Paulos, then and there being with intent to commit a crime, did commit the crime of murder in the first degree, in this, that they, the said defendants, while engaged in the commission of robbery and with a premeditated design to effect the death of a human being, did wilfully, unlawfully and feloniously strike at, beat and wound the body of Eugene A. Chenevert with a blunt instrument, namely a hammer, said hammer then and there being held and wielded by the said Leo Hall, mortally wounding the said Eugene A. Chenevert, of which mortal wounds the said Eugene A. Chenevert languished and died in said county and state on or about the said 28th day of March, 1934, contrary to the form, force and effect of the statute in such cases made and provided, and against the peace and dignity of the State of Washington.'

Upon arraignment, Leo Hall demurred to the amended information, on the ground that more than one crime is charged. The demurrer was overruled. He pleaded not guilty, and also interposed the defense of an alibi. Mrs. Paulos pleaded not guilty.

Throughout all the proceedings, including arraignment, entry of the pleas, and trial, and state was represented by the prosecuting attorney and a deputy or associate; Leo Hall was represented by his attorney; and Mrs. Paulos was represented by her separate attorney. In due time Before trial, Leo Hall filed a motion for a separate trial, which motion was denied. The jury returned a verdict finding Leo Hall guilty of murder in the first degree, as charged in the information, and returned a special verdict that the death penalty be inflicted upon him. Upon the denial of a motion for a new trial, judgment and sentence were entered against him upon the verdicts. He has appealed.

Without assigning error upon the matter or discussing it under any claim of error presented in the brief, and without being clear and definite, counsel for appellant seems to complain of an incident connected with the opening statement of Mrs. Paulos' attorney to the jury. In support of her claim of fear of Leo Hall, her attorney commenced to speak of her understanding of Leo Hall having been connected with some other crime. An objection was made Before the statement was completed, and the objection was promptly sustained. Counsel for appellant then asked the court to instruct the jury to disregard the statement. The court did so at once, as requested, and that closed and ended the matter.

The first assignment is that the amended information charges two crimes, robbery and the premeditated killing of Eugene A. Chenevert, and that the court erred in denying appellant's demurrer to the amended information.

Rem.Rev.Stat. § 2392, says:

'The killing of a human being, unless it is execusable or justifiable, is murder in the first degree when committed either----

'1. With a premeditated design to effect the death of the person killed, or of another; or, * * *

'3. Without design to effect death, by a person engaged in the commission of, or in an attempt to commit, or in withdrawing from the scene of, a robbery, rape, burglary, larceny or arson in the first degree.'

The amended information charges but one crime. It says that the defendant 'did commit the crime of murder in the first degree, * * * while engaged in the commission of robbery and with a premeditated design to effect the death of a human being, etc.'

There is no good reason, in our opinion, to depart from the current of authority and hold the amended pleading in this case bad when, most reasonably, it can and must be said that it alleges that the crime complained of was but a single act or transaction, all committed at one and the same time and place, in violation of the law against murder in the first degree, simply because the act or transaction responds to two statutory ways of committing that crime. The ways or means mentioned were merely descriptions of the particular crime of murder in the first degree charged to have been committed at that time. Whether the crime was committed by either or both ways, the penalty is precisely the same. These views and reasons are in harmony with State v. Laws, 61 Wash. 533, 112 P. 488; State v. Makovsky, 67 Wash. 7, 120 P. 513; and Sweek v. People, 85 Colo. 479, 277 P. 1, 4, which latter case cites, with approval, our Washington cases just referred to.

In the Colorado case, it was pertinently remarked that the 'subtleties and hypertechnical refinements,' tended to be encouraged by former decisions in criminal cases, no longer prevailed, because of statutory provisions for testing the sufficiency of indictments and informations set out in the opinion, and which, it appears, are similar to our statutes, Rem.Rev.Stat. §§ 2065 and 2066, the latter one of which says:

'No indictment or information is insufficient, nor can the trial, judgment, or other proceedings thereon be affected, by reason of any of the following matters, which were formerly deemed defects or imperfections:----* * *

'4. For any surplusage or repugnant allegation, or for any repetition, when there is sufficient matter alleged to indicate clearly the offense and the person charged; nor

'5. For any other matter which was formerly deemed a defect or imperfection, but which does not tend to the prejudice of the substantial rights of the defendant upon the merits.'

The form of the amended information, in the respect complained of, did not tend in any way to the prejudice of the substantial rights of the appellant, upon the merits. There was but one crime charged; the demurrer was properly overruled.

The second assignment, the one upon which appellant mostly relies, is that the court erred in denying appellant's motion for a separate trial.

The motion was supported only by the affidavit of appellant's attorney, in substance and effect as follows: That affiant had investigated the facts and circumstances in connection with the crime; that defendant Mrs. Paulos had confessed and stated that she participated in the crime charged, saying that Leo Hall is guilty of the crime and that she will so testify at the time of his trial; that she has stated that the parts performed by her were done under duress and threats of Leo Hall; and that she will so testify. That such statements made by her and also her attorney have been widely published and circulated by various newspapers in King and Kitsap counties. That Leo Hall's defense will be a complete denial of her story, and that their interests are so antagonistic that Leo Hall cannot have a fair trial if tried at the same time with her. That affiant believes that, if the trial be joint, her attorney will attempt to influence the jury and court in the truth of her story and the falsity of his story; and that she, acting under the advice of her attorney, has declined to talk with affiant.

Prior to 1919, a defendant, jointly indicted or informed against with another, could demand a separate trial as a matter of right. That year the law was changed, Session Laws 1919, p 42, c. 16, Rem.Rev.Stat. § 2161, by which the right to a separate trial was placed in the discretion of the trial judge; and, while a showing in support of a motion for a separate trial may aid the trial judge in the...