State v. Leuch

• Decision Date: 22 March 1939
• Docket Number: 27324.
• Citation: 88 P.2d 440,198 Wash. 331
• Parties: STATE v. LEUCH.
• Court: Washington Supreme Court

88 P.2d 440

198 Wash. 331

STATE v. LEUCH.

No. 27324.

Supreme Court of Washington

March 22, 1939

Department 1.

Bernhard R. Leuch was convicted of murder in the first degree, and he appeals.

Affirmed.

Appeal from Superior Court, Mason County; D. F Wright, judge.

Charles R. Lewis, of Shelton, for appellant.

Doane Brodie, of Shelton, and Smith Troy, Pros. Atty., of Olympia for the State.

JEFFERS Justice.

The defendant, Bernhard R. Leuch, was convicted of murder in the first degree, and sentenced to death, for the unlawful killing, on June 1, 1938, of his wife, Lena Leuch. This is an appeal by him from the judgment entered, and from an order denying a new trial.

No question of the insufficiency of evidence is presented. The only errors assigned are: (1) The court erred in sustaining challenges for cause to two prospective jurors, whose opinions precluded capital punishment. (2) The court erred in permitting the introduction into evidence of a life insurance policy upon the deceased, without proof that appellant knew such policy was in existence. (3) The court erred in receiving certain testimony and evidence from expert witnesses. (4) The special prosecuting attorney was guilty of misconduct during the trial of the cause and in his argument to the jury.

In view of the assignments of error, we shall discuss only so much of the testimony herein as may be necessary to a consideration of such assignments.

The following questions were propounded to Mr. Reader, a prospective juror:

'Q. Mr. Reader, have you any conscientious scruples against the infliction of the death denalty in cases of murder in the first degree? A. Well, yes.

'Q. You have? A. Yes.'

Whereupon a challenge for cause was submitted to the juror by Mr. Troy, special prosecuting attorney. Mr. Lewis, attorney for appellant, objected, and thereafter Mr. Lewis propounded the following questions to the juror:

'Q. Mr. Reader, are your objections such that under no conditions as presented to you that you could not return the death penalty? A. Well, I just don't feel that I have the right to do that.

'Q. You feel that you have not the right in any case? A. No, I don't.'

Thereupon the court excused the juror. Appellant excepted to the ruling of the court.

The same questions were asked prospective juror Wilkinson, and the same answers were made as by Reader, whereupon a challenge to the juror was submitted by the state and sustained by the court, to which ruling appellant excepted.

It is the contention of appellant that in excusing the jurors, both the appellant and the jurors were deprived of their rights under the fourth amendment to the state constitution.

Amendment 4, of article 1, § 11, of the state constitution, in so far as material, reads as follows: 'Absolute freedom of conscience in all matters of religious sentiment, belief and worship, shall be guaranteed to every individual, and no one shall be molested or be disturbed in person or property on account of religion. * * * No religious qualification shall be required for any public office or employment, nor shall any person be incompetent as a witness or juror, in consequence of his opinion on matters of religion, nor be questioned in any court of justice touching his religious belief to affect the weight of his testimony.'

Rem.Rev.Stat. § 2142, provides: 'No person whose opinions are such as to preclude him from finding any defendant guilty of an offense punishable with death shall be compelled or allowed to serve as a juror on the trial of any indictment or information for such an offense.'

Appellant contends that conscientious scruples are, in fact, religious opinions. This question seems never Before to have been presented to this court.

Webster's New International Dictionary defines 'conscience' as follows: 'Sense or consciousness of the moral goodness or blameworthiness of one's own conduct, intentions, or charcter, together with a feeling of obligation to do or be that which is recognized as good;--often with special reference to feelings of guilt or remorse for ill-doing. Hence, a faculty, power, or principle, conceived to decide as to the moral quality of one's own thoughts or acts, enjoining what is good.'

The word 'scruple' is defined by Webster as follows: 'Hesitation as to action or decision from the difficulty of determining what is right or expedient; unwillingness, doubt or hesitation, proceeding from conscientiousness.'

The case of People v. Rollins, 179 Cal. 793, 179 P. 209, seems to us to answer the questions raised by appellant. Section 4, of article 1, of the constitution of the state of California, is, to all intents and purposes, the same as the fourth amendment of article 1, § 11, of our state constitution, and subdivision 8, of § 1074, of the California Penal Code is practically the same as Rem.Rev.Stat. § 2142. In the case cited, it is said:

'The only point made on the appeal is that the trial court erred in allowing challenges interposed by the district attorney to several jurors under subdivision 8 of section 1074 of the Penal Code, which provides as follows:

"If the offense charged be punishable with death, the entertaining of such conscientious opinions as would preclude his finding the defendant guilty; in which case he must neither be permitted nor compelled to serve as a juror.'

'There were several jurors excused by the trial court on challenge by the district attorney on this ground. As to all of them it was clear from their answers to questions on their examination that in no case would they agree to a verdict of guilt carrying the death penalty.'

The first question raised in the instant case was that, even though the juror had conscientious scruples against the death penalty, he was not disqualified, because the jury might not inflict the death penalty, but life imprisonment. This question was also raised in the Rollins case, supra, and, answering it, the supreme court of California said: 'It has heretofore always been thought that the provision [referring to subd. 8, § 1074, Penal Code] means that, if the offense 'be punishable by death,' as is true of the offense of murder in the first degree notwithstanding that it is also punishable in the discretion of the jury in the particular case by imprisonment for life, the entertaining by a juror of such conscientious opinions relative to capital punishment as would preclude his rendering in any case a verdict carrying the death penalty brings him within its scope, and requires the allowance of a challenge interposed to his serving. * * * We have no doubt that this is the meaning and proper construction of the provision. The clear object of the provision is to accomplish the exclusion from the jury in such a case of any one whose conscientious opinion as to capital punishment would not permit him to concur in a verdict of guilty which entailed the death penalty--in other words, would not permit him to act as the law contemplates he should act, free to render any verdict that the circumstances of the case call for, regardless of the effect of such verdict.'

It was also claimed in the Rollins case, supra, that subdivision 8 of § 1074, of the Penal Code was unconstitutional, because it was violative of article 1, § 4, of the state constitution, and, referring to subdivision 8, the court said: 'All that the provision quoted means is that a person called as witness or juror 'is competent without any respect to his religious sentiments or convictions; the law leaving this matter of competency to legal sanctions, or, at least, to considerations independent of religious sentiments or convictions.' * * * In other words, he may not be debarred as a witness or juror because of his religious faith, and that element must be disregarded in determining his 'competency.' Section 1074, Penal Code, has nothing whatever to do with any question of 'competency' of jurors, a matter covered by sections 198 and 199, Code of Civil Procedure, and section 1046, Penal Code. That section prescribes grounds of challenge for implied bias, matters going to the ability of the juror, regardless of his competency to act as a juror generally, to fairly and impartially try the particular case in accord with the law applicable thereto. Certainly the constitutional...