State v. Mewhinney

• Decision Date: 09 May 1913
• Docket Number: 2389
• Citation: 134 P. 632,43 Utah 135
• Court: Utah Supreme Court
• Parties: STATE v. MEWHINNEY

134 P. 632

43 Utah 135

STATE v. MEWHINNEY

No. 2389

Supreme Court of Utah

May 9, 1913

Rehearing denied July 3, 1913.

APPEAL from District Court, Third District; Hon. F. C. Loofbourow Judge.

Harley Mewhinney was convicted of murder in the first degree. He appeals.

AFFIRMED.

S. P Armstrong and H. J. Brothers for appellant.

A. R. Barnes, Attorney General, and E. V. Higgins and George C. Buckle, Assistant Attorneys General for the State.

FRICK J. McCARTY, C. J., concurring. STRAUP, J., dissenting.

OPINION

FRICK, J.

Appellant was charged with, and, upon a trial by a jury in the district court of Salt Lake county, convicted of, murder in the first degree. The court, in due time, entered judgment sentencing appellant to suffer death. He appeals from that judgment.

Numerous errors are assigned. Before proceeding to a consideration of the assignments relating to the alleged errors occurring at the trial, we shall dispose of those which relate to the quashing of the information and the impaneling of the jury.

Counsel for appellant at the proper time interposed a motion to quash the information filed in the district court against him upon the grounds:

(1) That the magistrate before whom the original complaint was filed, and before whom appellant was taken after his arrest, did not inform or advise him "of his rights to the aid of counsel;" and (2) because "the testimony of the, or any of the, witnesses against him was not reduced to writing by the magistrate." The first ground is clearly untenable. The transcript of the proceedings before the magistrate affirmatively shows that the appellant "waived the service of an attorney." If this means anything, it means that appellant was apprised of his right to have such services.

In the absence of any showing to the contrary, we must presume that the magistrate performed the duties imposed upon him by our statute. Such is the holding of the courts. (People v. Figueroa, 134 Cal. 159, 66 P. 202.) In the case at bar, as we have pointed out, it, however, affirmatively appears that appellant waived any aid or assistance from counsel.

Referring, now, to the second ground of the motion, it is true that Comp. Laws 1907, section 4670, in terms provides that "the testimony of each witness in cases of homicide must be reduced to writing as a deposition, by the magistrate, or under his direction." This section in substantially the same form was in force long before Utah became a state. 2 Comp. Laws 1888, section 4883. It was carried into the Revised Statutes of 1898 as section 4670 of that revision and is now known by the same number in Comp. Laws 1907, supra. Since said section was originally passed the Constitution of this state was adopted where, in article 1, section 13, it, among other things, is provided:

"Offenses heretofore required to be prosecuted by indictment, shall be prosecuted by information after examination and commitment by a magistrate, unless the examination be waived by the accused with the consent of the state, or by indictment with, or without such examination and commitment."

Although the language of section 4670, supra, is positive and without exception that in homicide cases the testimony of the witnesses must be reduced to writing, yet, in view of the constitutional provision that the accused with the consent of the state may waive the examination the statute cannot be given application according to the strict letter thereof. If the accused or the officer representing the state desires an examination to be held, then of course witnesses must be heard, and if they are heard their testimony must be reduced to writing as required by the statute. If, however, no examination is desired and is expressly or by implication waived, as held by us in State v. Gustaldi, 41 Utah 63, 123 P. 897, then there is no need of hearing any testimony, and hence there is none to be reduced to writing. In the case at bar the transcript of the proceedings had before the committing magistrate affirmatively shows that appellant, with the consent of the state, expressly waived the preliminary examination mentioned in the Constitution. This he could do, and, having done so, he likewise must be held to have waived the necessity of the magistrate to hear any testimony with respect to the charge filed against him. There was therefore no testimony to be reduced to writing. Nor can there be any doubt as to appellant's competency to waive the examination, nor as to having done so, since he does not assail the truth of the statements to that effect contained in the magistrate's transcript, as he could have done under the ruling of this court in State v. Gustaldi, supra. See, also, upon this point, State v. Ritty, 23 Ohio St. 562. The motion to quash, for the reasons aforesaid, was therefore properly overruled.

It is also insisted that the court erred in refusing to sustain certain challenges for cause that were interposed by appellant's counsel against at least four prospective jurors upon the ground of both expressed and implied bias. It is accordingly urged that appellant was required to remove those jurors from the panel by the exercise of four peremptory challenges, which reduced by that number the quota of such challenges vouchsafed to him by our statute. We have carefully examined all of the testimony of those jurors given upon their voir dire, and we are satisfied that this case falls squarely within the rule laid down by this court upon this question in the recent case of State v. Thorne, 41 Utah 414, 126 P. 286. The only difference between this and the Thorne Case is that, while there might have been some doubt in our minds with respect to the qualifications of some of the challenged jurors in the Thorne Case, there is no such doubt in this case. If there were, however, the rulings of the trial court fall squarely within what is said in the Thorne Case, supra. Further, by carefully going over the jurors' examination, we are impressed with the fact that they were fair, impartial, and conscientious men, and the trial court was clearly justified in overruling the challenges. This contention, therefore, cannot be sustained.

It is further contended that the court erred in requiring appellant to exercise his peremptory challenges at times when the jury box was not filled with jurors. The jury was impaneled and the challenges were required to be exercised in the manner stated by Mr. Justice McCarty in State v. Riley, 41 Utah 225, 126 P. 294. We there held that the course of procedure followed in that case was proper. This case is therefore controlled by that one, and this assignment must also fail.

Passing to a consideration of the assignments relating to the alleged errors occurring at the trial, it becomes necessary to state as briefly as possible the controlling facts. From the evidence it is made to appear that the homicide in question occurred while appellant and an accomplice were engaged in the perpetration of or attempt to perpetrate a robbery. The undisputed facts relating to the homicide are substantially as follows: On the afternoon of the 6th day of October, 1911, between three and four o'clock, a Mrs Fuller, after meeting one Sol. S. Brown, a friend of hers, on the street in Salt Lake City, went with him to her room on the second floor of the Romona rooming house, which is located on the corner of Second East and Second South streets in said city. Mr. Brown wore a large and conspicuous diamond ring on one of his fingers of the approximate value of $ 350. In going upstairs to the room Mrs. Fuller noticed the appellant and his accomplice in the hallway. Within a few minutes after Mrs. Fuller and Mr. Brown had entered the room aforesaid, there was a knock at the door, and Mrs. Fuller went to open it. Upon opening the door she saw two men in the hallway (one of them the appellant) with handkerchiefs tied over the lower portions of their faces. As soon as she had opened the door, they forced their way into the room. One of the men had a revolver in his hand and immediately upon entering the room pointed it at Mr. Brown, and the other remained standing at the door, which he had closed after him. Mr. Brown at once went forward and grappled with the one having the revolver, catching his hand or forearm in such a manner as prevented him from shooting Mr. Brown, and a hard struggle ensued between them. Mr. Brown seemed to hold his own, and the man with the revolver, seemingly, could make no headway in obtaining the coveted prize, the ring. He called to his accomplice, who still stood guarding the door, for help, and said, "Pull the ring off his finger." The accomplice immediately left the door and went to the assistance of the other and in doing so struck Mr. Brown several times on the head with what is termed a "black-jack," inflicting scalp wounds which subsequently bled somewhat freely. The struggle now went on between the three, but as soon as the one had left the door Mrs. Fuller ran out of the room, down the hallway, and into the street crying for help as she went. Considerable uproar was thus caused, and it was not long before the man who had stood by the door also slipped out of the room, Mr. Brown and the other still continuing the struggle for supremacy, while Mr. Brown was also crying for help. Immediately after the one with the black-jack had left the room Mr. Brown heard the steps of a man in the hallway approaching the door which was now standing ajar. The one with the revolver, who was still continuing the struggle and still trying to obtain the diamond ring, apparently also heard the steps of the approaching stranger, whose name it was afterwards learned was Erickson, and he then also broke away from Mr. Brown, who was becoming quite weak from the blows he...