State v. Mayo

• Decision Date: 13 April 1906
• Citation: 85 P. 251,42 Wash. 540
• Parties: STATE v. MAYO.
• Court: Washington Supreme Court

85 P. 251

42 Wash. 540

STATE v. MAYO.

Supreme Court of Washington

April 13, 1906

Appeal from Superior Court, Spokane County; Miles Poindexter, Judge.

James Mayo was convicted of murder, and appeals. Reversed.

Sullivan Nuzum & Nuzum, for appellant.

R. M Barnhart and A. J. Laughon, for the State.

FULLERTON J.

The appellant was informed against in the superior court of Spokane county for the crime of murder in the first degree convicted of murder in the second degree, and sentenced to a term in the penitentiary. From the judgment of conviction he appeals.

He first contends that he was denied substantial rights given him by statute by the manner in which the jury was impaneled, and a number of his assignments of error are based on rulings made by the court with reference thereto. These assignments, as they embrace but a common question, can best be considered together. The Code (section 6879, Ballinger's Ann. Codes & St.) provides that any person indicted or informed against for a capital crime 'shall, on demand upon the clerk by himself or counsel, have a list of the petit jurors returned delivered to him at least twenty-four hours before trial.' Pursuant to this statute, some three days before the time set for the trial of his case the appellant served upon the clerk a written demand for the list of Jurors returned and then in attendance upon the court. The clerk in compliance therewith certified and served upon him a list of all those serving on the regular panel, some 53 in number, also a list of 36 more whom the court had ordered drawn from the jury list and directed to be summoned by special venire returnable on the morning fixed for the trial. The superior court of Spokane county consists of three departments, all three of which were engaged in trying causes by jury at the time the appellant's case was called for trial. On the call of his case some 24 of the jurors on the regular panel did not report for duty in the department in which the appellant was tried, being engaged in other departments, and the court, over his objection, ordered the trial to proceed without requiring them to be brought in, and also over objection directed that those summoned on the special venire and who had reported for the first time that morning be listed with the regular jurors. The impaneling of the jury was then commenced and was proceeded with until the afternoon of the next day, when the judge presiding discovered that the jury could not be completed from the jurors then in attendance upon his department. He thereupon ordered 24 more names drawn from the jury list, and a special venire returnable forthwith issued for the jurors whose names were so drawn. Of these the sheriff summoned 6, and their names were written on ballots and placed in the clerk's box over the objection of the appellant. A juror who had been executed from attendance upon the court until that time also returned, and his name, over objection, was placed in the box. From this list, together with 12 of the regular panel who had been brought in from another department, the jury before whom the appellant was tried was finally completed.

It is the appellant's contention that the statute above cited confers on a defendant accused of a capital crime the right, not only to have the list of jurors returned and in attendance upon the court served upon him 24 hours before his case is set for trial, but the right to have the jury before which he is tried selected from the list so served upon him, or at least to have that list exhausted in an effort to secure a jury before additional jurors are added to the list. The statute in question was enacted before Washington was admitted into the Union as a state, and at a time when the court system and the method of drawing and summoning jurors differed widely from the present court system and the present method of drawing and summoning them. At that time we had a district court which held terms at stated intervals fixed by law. Jurors were drawn in advance of these terms to report at the commencement thereof. If a sufficient number did not report to form a panel of the required number, the sheriff summoned from the bystanders or the body of the county a sufficient number of persons to make up the number. From this panel the trial juries required in the cases pending before the court were drawn. But since statehood the changes from the old system have been radical, not only in the method of summoning trial jurors, but in the court system itself. Now there is in each county a superior court which has no terms, and is open for business at all times, except on nonjudicial days. In some counties the court is composed of more than one department, for each of which there is a separate judge. These several departments have equal powers, and all may engage in trials by jury at the same time. Each department selects its trial jury from the same general panel. These panels are drawn from lists prepared by the jury commissioners. On the second Saturday of each month the court orders the commissioners to draw from the jury list the names of such number of person as he thinks will be required for jury service during the ensuing month, and a venire is issued for the persons whose names are so drawn. The court is empowered, also, to order drawn and summoned by special venire returnable at such time as it may direct any additional number that the judge may think necessary from which to select a jury in any particular case. Nor does a single exercise of this power exhaust it. It may be resorted to until enough qualified jurors are so drawn. Moreover, this is the only way an exhausted panel may be now refilled in counties of the class to which Spokane belongs. It is no longer permissible to select from the bystanders or issue an open venire to the sheriff. Whenever the general panel is exhausted and additional jurors are required to complete a trial jury, they must be drawn from the jury list and a special venire issued for them, while under the old practice they were summoned from the bystanders by the sheriff.

From the foregoing it is apparent that the section of the statute relied upon by the appellant, while harmonious and consistent with the statutes and general practice in vogue at the time it was enacted, has been rendered practically obsolete by the later statutes and practice. While a person charged with a capital offense may still demand and may still have a list of jurors in service upon the court at the time his case is called for trial served upon him, yet it cannot be held that he has the right to have the jury which is to try his case selected exclusively from that list. Such a rule would make it impossible to try in one county two persons accused of capital crimes at the same time, no matter how many departments of the court there might be in that county. In fact, that rule would subordinate the business of the entire court to the demands of the particular case, and such we cannot hold to be the intention of the Legislature. The later statutes, in so far as they conflict with the earlier one, must be held to have superseded it, and consequently we must hold that, if it ever was the rule that a person charged with a capital crime had the right to have the jury before which he was to be tried selected from the panel in attendance upon the court at the time his case was called, the right has been taken away by the later statutes.

The information charged the appellant with having killed and murdered one William Crane by shooting him with a revolver. The state offered, and the court admitted in evidence, statements made by Crane after he had been wounded and just prior to his death concerning the circumstances of the shooting. These were admitted as dying declarations, and it is urged by the appellant that the court erred in so doing, first, because it was not made to appear that the declarant realized at the time they were made that he was about to die or must die from the injuries he received; and, second, because the description given of the person who did the shooting does not identify that person as being the defendant. As to the first objection, the evidence shows that the declarant has been informed by the doctor in attendance upon him that he was about to die, and that he stated that he realized it. This was sufficient to comply with the rule. State v. Baldwin, 15 Wash. 15. The second objection is equally without merit. The admissibility of a dying declaration does not depend on its completeness. That it adds a link in the chain of evidence is all that is necessary. The declaration in this case did at least add a link to the chain of the evidence against the appellant. It described the circumstances under which the crime was committed, and made it possible to identify the person who committed the crime.

The appellant offered evidence tending to show that the deceased had made other statements after receiving the wound from which he died inconsistent with those contained in his dying declaration. The court at first refused to admit the statements at all, but afterwards allowed the appellant to introduce them after the manner of impeaching evidence; that is to say, by permitting the appellant to ask the witness if the injured person did not at a certain time and place say so and so concerning the manner...