State v. Melvern

• Decision Date: 05 May 1903
• Citation: 32 Wash. 7,72 P. 489
• Parties: STATE v. MELVERN.
• Court: Washington Supreme Court

72 P. 489

32 Wash. 7

STATE v. MELVERN.

Supreme Court of Washington

May 5, 1903

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

Joseph Melvern was convicted of murder, and appeals. Affirmed.

J. W. Heffner and S. A. Bostwick, for appellant.

H. D Cooley, for respondent.

ANDERS J.

The defendant, Joseph Melvern (appellant here), was convicted in the superior court of Snohomish county of murder in the second degree upon the trial of an information charging him with murder in the first degree for the killing of one Clara Melvern by shooting her with a pistol. A motion for a new trial was filed and overruled, and the court thereupon sentenced the defendant to the penitentiary for the period of 20 years.

The information on which the appellant was tried was filed on March 1, 1902. On April 28, 1902, the appellant filed a motion to set aside the information, which motion was denied and an exception noted. Immediately thereafter a demurrer to the information was filed, which the court overruled, to which ruling the appellant excepted. The superior court was asked to quash and set aside the information upon the ground that the defendant had been held and confined in the jail of Snohomish county, Wash., since February 21, 1902, without due process of law, for the reasons: (1) That no warrant had ever been issued for his arrest upon any charge; (2) that he had not been held by virtue of any warrant issued upon any charge; (3) that the defendant had never had a preliminary examination in this cause before any committing magistrate; (4) that at the time the information in this cause was filed the defendant was restrained of his liberty, and, by reason of the premises the court had no jurisdiction over the person of the defendant. This motion was based on the affidavit of the defendant, filed therewith, and the records of the cause. It is insisted by the learned counsel for appellant that the court erred in denying this motion for the reason that the prosecuting attorney had no right or jurisdiction, under section 6802, Ballinger's Ann. Codes & St., to file the information prior to the filing of a complaint charging the appellant with the commission of an offense and a hearing thereon before a committing magistrate. Subdivision 4 of said section 6802 provides that offenses may be prosecuted in the superior courts by information 'whenever a public offense has been committed and the party charged with the offense is not already under indictment therefor, and the court is in session and the grand jury is not in session or has been discharged'; and there is nothing in the affidavit upon which the motion was based, or elsewhere in the record, showing that the appellant was already under indictment, that the court was not in session, or that the grand jury was in session, at the time the information was filed. And, inasmuch as the superior courts of this state are courts of general jurisdiction, it must be presumed that the trial court had authority to entertain a prosecution of the appellant by information, although the record does not affirmatively show the existence of the conditions under which an information may be filed. In other words, it will be presumed, for the purposes of this case, in the absence of a contrary showing, that the appellant was not already under indictment for the offense with which he was charged, that the court was in session, and that the grand jury was not in session when the prosecuting attorney filed his information. See State v. McGilvery, 20 Wash. 240, 55 P. 115; Nichols v. State, 127 Ind. 413, 26 N.E. 839. Moreover, no provision is made by our statute for quashing an information upon the grounds specified in appellant's motion. See Ballinger's Ann. Codes & St.§ 6892. We think the motion to set aside the information was properly denied.

It is also claimed that the court erred in overruling the appellant's demurrer to the information. The demurrer was predicated upon two propositions, the first one being that the information did not substantially conform to the requirements of the Code, and the second that the facts charged did not constitute a crime under the laws of the state of Washington. And it is argued in support of the demurrer that the information does not allege the existence of the conditions necessary to authorize the prosecution of appellant by information, and particularly that it does not aver that appellant had been held to answer the charge preferred against him by a duly authorized magistrate. This contention is untenable. It has been held on several occasions by this court that the existence of the facts or conditions which the statute enumerates as prerequisites to the right to prosecute by information need not be set forth in the information itself. See State v. Anderson, 5 Wash. 350, 31 P. 969; State v. Munson, 7 Wash. 239, 34 P. 932. And the ruling of this court upon this question seems to be in accordance with the decisions of the courts of other states under statutes similar to ours. See 10 Enc. Pl. & Pr. 460, and cases cited in note 1. It is shown by the above-mentioned affidavit that no warrant was ever issued for the arrest of the appellant, and it is, therefore, strenuously insisted that the court never acquired jurisdiction of the person of appellant, and consequently had no right to compel him to go to trial. But it appears that appellant was in fact in the custody of an officer, that he was present in court on the day of his arraignment, that he entered a plea of not guilty to the information, and that he was in court throughout the trial. Under these circumstances we have no doubt that the court had jurisdiction of the defendant. See 1 Bishop's New Crim. Proc. § 179; Ker v. Illinois, 119 U.S. 436, 7 S.Ct. 225, 30 L.Ed. 421; State v. Ray, 50 Iowa, 520. We are unable to perceive why the alleged irregularity in the manner of bringing the appellant before the court entitled him to immunity from trial for the offense with which he was charged in the information. The court might have caused a warrant to be issued for the arrest of appellant at the time of the trial, but that was unnecessary, because he was alrwady in court in charge of the sheriff. There is nothing in the record indicating that he objected to the manner of his arrest or detention at any time prior to the day of trial. If he was illegally restrained of his liberty while in the county jail, he might have obtained redress by an appropriate proceeding in court; but the mere fact that he was arrested, in the first instance, by a person not having a lawful warrant therefor, and detained by him, constitutes no ground for the reversal of the judgment.

At the close of the state's evidence counsel for the defendant requested the court to direct a verdict of acquittal. The court declined to direct the jury as requested, and its action in that regard is assigned as error. The evidence adduced by the state tended to support the allegations of the information, and therefore the court did not err in denying the defendant's motion. The evidence on the part of the state tended to establish the following facts: In the month of September or October, 1900, appellant was engaged as a piano player in a certain saloon and dance hall in the city of Portland, Or. He there became acquainted with deceased then known as Gertie Ambrose, and in about two weeks they began to live together as husband and wife, and thereafter she was known as Clara Melvern. After living together two or three months in Portland, they moved to Everett, and afterwards to Snohomish, Wash. During the time they resided in Portland, the appellant, on several occasions, while under the influence of liquor, ill-treated and abused the deceased, Clara Melvern, without any apparent reason therefor. At one time he struck her over the head with a pistol; at another, pulled her hair; and still at another stabbed her with a knife, thereby inflicting a wound which confined her to her bed for two or three weeks, and which left a scar which was liable upon her body after death. He threatened to kill Clara 'if she ever done any trifling on him.' In July, 1901, and for several months thereafter, appellant and the deceased lived in a 'shack' in the city of Everett. Within 12 feet of this shack lived a family by the name of Parker. On one occasion Mrs. Parker was awakened by a sound as if the deceased was being choked. She testified that she heard the deceased cry out, and then it sounded as if she was being smothered about the throat. On other occasions this witness was awakened in the night by loud talk by appellant, but coul not understand what he said. About 1 o'clock one night in February or March, 1901, appellant and the deceased went to the Summit Hotel, in Everett, and engaged a room. Soon after their arrival, Mrs. Lindsay, the proprietor, hearing a disturbance, went out into the hall where they were to ascertain what they were doing. The appellant was then trying to take something out of his trunk, and the deceased was trying to prevent him. Mrs. Lindsay conducted them to their room, and then went to bed. She heard some noise after they went into the room, followed by a crash, which was afterwards shown to have been caused by a pistol shot, fired in their room, breaking the mirror on the 'dresser.' A witness, who was sleeping in an adjoining room on that night, heard the shot, and immediately thereafter heard a man in the room where the shooting occurred say, 'I'll let you know when I'm going to kill you.' At the time the appellant and the deceased came to the hotel no indication of a wound was noticed upon the face or forehead of the deceased, but the next morning her head was tied up, and she had a wound on her forehead over her eye, which she, in the...