State v. Hardung

• Citation: 161 Wash. 379,297 P. 167
• Decision Date: 23 March 1931
• Docket Number: 22960.
• Parties: STATE v. HARDUNG.
• Court: United States State Supreme Court of Washington

297 P. 167

161 Wash. 379

STATE v. HARDUNG.

No. 22960.

Supreme Court of Washington

March 23, 1931

Department 2.

Appeal from Superior Court, Lincoln County; W. M. Nevins, Judge.

Jake Hardung was convicted of arson in second degree, and he appeals.

Affirmed.

F. M Curtiss, of Odessa, for appellant.

Joseph H. Johnston, of Davenport, for the State.

FULLERTON J.

The appellant, Hardung, was informed against, jointly with one Sam Derr, for the crime of arson in the second degree. In the information, Derr was charged with the commission of the overt act constituting the crime, and the appellant was charged with having counseled, aided and abetted therein. Derr pleaded guilty to the offense, and was sentenced on his plea of guilty. The appellant pleaded not guilty and was found guilty by the verdict of the jury. The appeal before us is from the judgment and sentence pronounced upon the verdict.

The building which the defendants were accused of burning was a grain elevator, owned by the appellant. It was unoccupied at the time it was burned, was not in use for the purposes for which it had been constructed, and seemingly it had not been so used for a number of years. It had been partially dismantled after the appellant had obtained title to it, and some of the fixtures taken from it were found in the possession of the appellant at his home. The building was insured in a sum grossly exceeding its actual value, and the building and the land upon which it was situated were mortgaged to their full value.

The appellant's connection with the transaction rests principally on the testimony of Derr. Indeed, there was but little of circumstance shown or of direct evidence introduced which tended to corroborate him. But after a careful reading of his testimony we are impressed, as the jury and the trial judge must have been impressed, with its evident truth. He was, it is true, an accomplice, and it is true also that the testimony of an accomplice must be viewed with caution; but in this jurisdiction a defendant may be lawfully convicted of a crime on the testimony of an accomplice. Often this is the only character of evidence that the state can produce, and if the rule were otherwise many criminals would go unpunished. It would have been so in this instance. The crime was carefully planned. No third person was taken into the confidence of the conspirators. The plans were such as would ordinarily leave no trace of the perpetrators. But fortunately or unfortunately, owing to the point of view, the plans miscarried in part. Gasoline was used to insure a quick burning of the building, and this, when ignited, exploded burning Derr severely, and causing an inquiry which led to a discovery of the cause of the fire. The defense of the appellant was conducted by an able and experienced attorney. His cross-examination of Derr was subtle and masterly. In it he laid bare to the jury Derr's somewhat dissolute life and all of his petty delinquencies, but his story as to the principal event was not shaken. We cannot therefore follow the appellant in his contention that the trial court should have taken the case from the jury.

After the return of the verdict the appellant moved for a new trial, basing the motion on the ground that Derr was of unsound mind, and incompetent to testify as a witness in the cause. The motion was supported by the affidavits of some seven persons, who gave it as their opinion that Derr was incompetent to testify for the reason stated in the motion. But it is our conclusion that the motion was rightly denied. While it is true we have a statute which declares that a person of unsound mind is not competent to testify (Rem Comp. Stat. § 1213), the statute itself offers no definition of the term 'unsound mind.' Nevertheless, we think it must include those persons only who are commonly called insane;...