State v. Humason

• Decision Date: 12 January 1893
• Citation: 5 Wash. 499,32 P. 111
• Court: Washington Supreme Court
• Parties: STATE v. HUMASON.

32 P. 111

5 Wash. 499

STATE v. HUMASON.

Supreme Court of Washington

January 12, 1893

Appeal from superior court, Spokane county; R. B. Blake, Judge.

E. F Humanson was convicted of grand larceny, and appeals.Reversed.

Hoyt and Scott, JJ., dissenting.

T. C. Griffitts and Turner & Forster, for appellant.

S. G Allen, Pros.Atty., (Turner, Graves & McKinstry, special counsel,) for the State.

STILES J.

None of the questions raised by the appellant which are based upon affidavits contained in the transcript can be passed upon by this court, since they are not made a part of the record by a statement or bill of exceptions.Windt v. Banniza, 2 Wash. St. 147, 26 P. 189.

Appellant was required to go to trial on the 26th day of February 1891, upon an information filed against him on the 23d day of the same month, for the crime of stealing certain neat cattle, under Code 1881, § 833.He complains because of his trial having been fixed within five days from the date of his arrest, contrary to the provisions of CodeProc. § 1363.Appellant was actually arrested some time before February 23d, and the record clearly shows that he had been held for trial by a magistrate before the information was filed.We think the fair construction of section 1363 ought to be that the arrest therein mentioned is that of being taken into custody upon the charge brought against him before the magistrate, and not the formal rearrest made afterwards, when the information is filed.

A point was made that the information was defective because it was not signed by any officer authorized by law to sign it.This point was raised by a demurrer and motion to quash, wherein it was alleged "that S. G. Allen, who signs himself as prosecuting attorney to said information, is not the prosecuting attorney of said Spokane county, or of any other county in the state of Washington, or of the state of Washington, and is acting therein without any authority of law whatever."There is no finding by the court upon this subject.The ruling of the court was that the motion and demurrer be overruled.We are bound to presume, we think, that the court found the fact to be contrary to the allegations contained in the demurrer and motion, and therefore to uphold the ruling.Superior courts, of course, take judicial notice of the officers of the counties in which they sit, and particular of their own officers; and this court will presume, in all such cases, that the lower court has acted correctly in such matters.Graham v. Anderson,42 Ill.514;Dyer v. Flint,21 Ill. 80;Thompson v. Haskell, Id. 215;Buell v. State,72 Ind. 523.

The information is also attacked on the ground that it was unconstitutional, but this matter has been so often adjudicated that we do not consider it necessary or proper that we should enter upon any further review of the matter.Hurtado v. People,110 U.S. 538, 4 S.Ct. 111, 292.

A great many errors alleged to have been committed in connection with the taking of testimony in the case are assigned, a few of which are worthy of review, because of the disposition which we shall have to make of the case.One Weldon A. Morris was on or about the 5th day of January, 1891, the owner of the cattle alleged to have been stolen, which had been running on the range some miles from Spokane.These cattle were suddenly missing from the herd, and they were within a day or two traced to the slaughterhouse of the appellant, in the suburbs of Spokane, where it is not denied they were slaughtered as beef cattle.There was no contention upon the part of the state that the appellant actively participated in the theft of the cattle; but it was strenuously insisted, and with success, before the jury, that he was a participant in the plan to steal them, and that when he received them into his yard, at Spokane, and killed them, it was with knowledge that they had been stolen.

The first question which arises in connection with the evidence, which we deem it necessary to notice, was brought about by the court's action in permitting Morris to detail the conversations had between himself and members of the firm of Gay & Stevens, not in the presence of the appellant.There was no error in this matter, however.The defense endeavored to show, upon the cross-examination of Morris, that he had made a conditional sale of his entire band of cattle to Gay & Stevens, and that the property in the cattle had thereby passed to the latter.The conversations testified to merely went to the point of showing that the conditional sale had been orally rescinded before the alleged theft, and that, therefore, the full property in the cattle was still in Morris.

The first material error which we find in the case is that committed in permitting the sheriff of the county, and other witnesses, to testify concerning certain 8 head of cattle which were not a part of the 14 head alleged to have been stolen of Morris.The evidence in the case demonstrated that the 14 head of cattle in controversy were killed, and their carcasses and hides fully disposed of by sale, in the usual course of the business of the firm of King & Humason, of which the appellant was a member, before the 9th day of January.On that day, however, the sheriff took possession of the appellant's slaughterhouse, and found there the carcasses of four head of cattle, and some hides, heads, horns, and ears.The sheriff returned from the slaughterhouse, and, as it would seem, without having put him under arrest, took him in his buggy, and drove back to the slaughterhouse with him.At the slaughterhouse the sheriff called his attention to the carcasses in the shed, and to the hides, and the fact that the left ear had been cut off from each head.The appellant disclaimed any ownership of these cattle, and remarked that the absence of the left ears looked bad.The sheriff further testified that the ears had been gathered up in the morning by him or his men, and that they had been put in a sack with a pair of stag horns.This sack was laid on a platform with a lot of empty sacks.Other testimony was given to show that upon noticing this sack, with the ears in it, appellant attempted to get it out of the way, by putting it in a different place, and piling the empty sacks on top of it.All the testimony upon this subject was drawn out under the strenuous objection of the appellant, and under the statement by the court: "Of course, I cannot see the relevancy of it now, but it seems to me it is entirely harmless matter.If it is irrelevant, it will be stricken out."Now, the whole purpose of this testimony was apparent from the beginning, viz. to endeavor to get before the jury an impression that these four head of cattle, and four others, which were alive and in appellant's yard, were also stolen cattle, and that the appellant, knowing them to be such, had caused the ears, which contained certain marks of ownership, to be cut off and put in a sack, where they would not be likely to be observed, and that, when he found they had been noticed, he endeavored to get them out of the way.The entire transaction was wholly independent of any matter at issue in the case on trial, and there was no legal excuse for injecting it into the case.It was not a case where cattle alleged to have been stolen are found in the possession of the accused, in a herd with other cattle, which are also claimed to have been stolen.These eight head of cattle did not appear at the yards of the appellant until after the cattle in question had been slaughtered, and completely disposed of.Moreover, it was not shown that they were stolen cattle.The court, at a subsequent stage of the case, refused to strike out this objectionable testimony, athough twice applied to to do so.He promised to instruct the jury to the effect that, so far as those eight head of cattle were concerned, they should not take them into consideration in determining defendant's guilt, but no such charge was given.It is impossible to resist the conclusion that the jury probably went to their room to determine, as between the state and the appellant, in a case where the only evidence was...