State v. McPhail

• Decision Date: 18 July 1905
• Parties: STATE v. McPhail.
• Court: Washington Supreme Court

81 P. 683

39 Wash. 199

STATE v. McPhail.

Supreme Court of Washington

July 18, 1905

Appeal from Superior Court, Snohomish County; John C. Denney, Judge.

Angus J. McPhail was convicted of murder, and he appeals. Affirmed.

Hathaway & Alston, for appellant.

J. W Hartnett, for the State.

RUDKIN J.

The appellant was convicted of the crime of murder in the first degree, and from the judgment and sentence of the court this appeal is prosecuted. It appears that the appellant and the deceased were rivals in the saloon business at the town of Darrington, in Snohomish county. The appellant opened the first saloon in the town, and the competition caused by the saloon afterwards opened by the deceased curtailed the appellant's business to such an extent as to cause considerable ill feeling on his part toward the deceased. One one or more occasions prior to the homicide the appellant abused the deceased in public, called him vile names, and made threats of a more or less direct nature against him. On the 10th day of May, 1903, the appellant packed up his belongings, with the intention of leaving the town. About 3 o'clock of that day he repaired to the saloon of the deceased, accompanied by those who had been assisting him in packing up. After he had been in the saloon about an hour and a half, without any apparent provocation he shot the deceased in the back, over the bar; inflicting a mortal wound, from which the deceased expired almost immediately. After firing the fatal shot the appellant stepped around the end of the bar, and fired a second shot in the direction of the prostrate form of the deceased. Counsel for appellant insist that there is a conflict in the testimony as to firing of the second shot, but a careful reading of the evidence discloses no such conflict, if the fact be at all material. After the homicide the appellant emptied two discharged shells and three loaded ones from his revolver upon the floor, threw the revolver under a row of barrels in the saloon, and left the place. Some hours later he returned to the house where he had been stopping, and was there apprehended.

We will now consider the various errors assigned in the order in which the rulings occurred at the trial:

1. It is assigned as error that the court admitted evidence tending to prove the bad character of the appellant, although the appellant did not take the witness stand or put his character in issue. While the appellant interposed the general plea of not guilty, all the testimony offered in his behalf tended to establish the defense of insanity. It was claimed on the part of the appellant that he was insane at the time of the homicide, and that such insanity was superinduced, in part at least, by blows which he had received on the head some six months before in an encounter with one Gallagher. In rebuttal the state offered testimony tending to show the nature and extent of the injuries inflicted upon the appellant in such encounter, but disclaimed any right to prove anything beyond this. It is true, the witnesses went into the details of the trouble between the appellant and Gallagher further than was necessary for that purpose, but the only objection interposed was the general one that the testimony was not proper rebuttal. This testimony was clearly competent for the purpose for which it was offered, and was strictly in rebuttal of the defense interposed by the appellant. There was no error in this ruling.

2. The court instructed the jury as follows: 'You are the judges of the credibility of the witnesses, and the weight to be attached to the testimony of each and all of them.' The appellant contends that the jury should have been instructed that they were the sole judges of the facts. The charge given was correct as far as it went, and if the appellant desired a more specific charge, or a charge in the language of the statute, he should have requested it. There was no error in the charge as given.

3. The court further instructed the jury that they might find the appellant guilty of murder in the first degree, guilty of murder in the second degree, or not guilty, but that there was no evidence in the case to support or justify a verdict of guilty of manslaughter. Counsel for appellant earnestly insist that this instruction was a comment on the facts, in violation of section 16, art. 4, of the state Constitution which provides that 'judges shall not charge juries with respect to matters of fact, nor comment thereon, but shall declare the law.' It seems to us that counsel labor under an entire misapprehension as to the purpose and effect of this constitutional provision. It relates only to the manner of conducting trials and submitting questions of fact to juries, and does not limit the power of the courts in the determination of questions of law. In this as in all other jurisdictions the court must determine the issues to be submitted to the jury from the pleadings and proofs, and in making such determination it decides matters of law, and not matters of fact. If the court improperly withdraws an issue from the consideration of the jury, its ruling is erroneous, not because it is a comment on the facts, or a charge with respect to matters of fact, in violation of the provision quoted, but because it deprives the parties of a trial by jury, in violation of section 21 or section 22 of article 1 of the Constitution, which provide that the right of trial by jury shall remain inviolate, and that in criminal prosecution the accused shall have a speedy public trial by an impartial jury. The provision upon which counsel rely applies to both civil and criminal cases, and, if they are correct in their contention, this court has been in error throughout its entire existence in holding that whether there is any testimony to support a cause of action or a defense presents a question of law for the determination of the court, and not a question of fact for the jury. The position taken by counsel is that the trial court must submit every issue raised by the pleadings to the jury, regardless of the state of the testimony or the absence of all testimony. This contention finds no support in our Constitution or elsewhere, and cannot prevail. It is true, section 6955, Ballinger's Ann. Codes & St., provides that, 'upon an indictment or information for an offense consisting of different degrees, the jury may find the defendant not guilty of the degree charged in the indictment or information, and guilty of any degree inferior thereto, or of an attempt to commit the offense'; but similar statutes exist in the United States and in all the states, and the decisions are practically uniform to the effect that a defendant can only be convicted of a lesser degree or of an attempt when there is testimony to sustain such a conviction. The information before us charges the crimes of assault and assault and battery, but it would be an anomaly to hold that insanity excused the homicide, but did not excuse the assault or the battery, which was the direct and proximate cause of the homicide. The rule on the subject under consideration is thus stated in Ency. of Pl. & Pr. vol. 11, p. 211: 'On a criminal prosecution, it is not necessary for the court, of its own motion, or on request, to instruct as to the lower grades of crime involved, where there is no evidence on which to base such an instruction. The giving of such an instruction is not only unnecessary, but improper.' This rule is fully sustained by the authorities. Sparf and Hansen v. United States, 156 U.S. 51, 15 S.Ct. 273, 39 L.Ed. 343; Andersen v. United...