State v. Miller

Decision Date11 September 1931
Docket Number23284.
Citation164 Wash. 441,2 P.2d 738
CourtWashington Supreme Court

Department 2.

Appeal from Superior Court, Spokane County; R. M. Webster, Judge.

George Miller was convicted of murder in the first degree, and he appeals.


J Fraser Caldwell, of Spokane, for appellant.

Chas W. Greenough, of Spokane, for the State.


The defendant was charged by information with the crime of murder in the first degree. The trial resulted in a verdict of guilty as charged and a special verdict or finding by the jury that the death penalty should be inflicted. From the judgment and sentence pronounced on the verdict and special finding this appeal followed.

The jury were warranted in finding that prior to and on October 30, 1929, John Ivester was in the employ of the American Railway Express Agency at Spokane, Wash., engaged as a money and settlement clerk. Shortly after office hours, at about 6 o'clock in the evening of October 30, 1929, Ivester was in the money pen of the office counting the day's receipts. William G. Johnson, another employee of the express company, was sitting at a nearby table writing postal notices notifying various consignees of the arrival of shipments of goods. These two men were the only persons in the office at that time. Suddenly and without any warning a shot rang out followed by a loud moan or sign. Ivester was shot and died immediately. Hearing the shot, Johnson sprang to his feet and saw a man standing in front of the cage with a gun in his hand. He ordered Johnson to put up his hands and forced him at the point of his gun into a room at the rear of the express office and shouted or called out to a confederate referred to in the information as 'John Doe' whom Johnson did not see; 'Go ahead. I have the back end covered.' He ordered Johnson to lie on the floor and to hold up his hands, and tied them with a shoe string. Johnson identified the appellant as the man who had tied his hands and also recognized the gun as being a Colt's automatic, 45-caliber pistol. The appellant and his confederate robbed the express office of $601, and then made their get-away in an automobile, drove to some point beyond the corporate limits of the city of Spokane, where they split the 'swag.'

Later some police officers and a deputy sheriff went to the express office where they found a bullet and shell in the back room where Johnson had been forced to lie on the floor and found another bullet and shell in the cashier's cage. The deputy sheriff, an exarmy officer and a captain of the National Guard, identified the two bullets and the two shells as Frankfort Arsenal ammunition fired from a Colt's automatic, 45-caliber pistol, and testified that the cartridges were of a peculiar type used for national rifle matches at Camp Perry, ohio, in 1927. A merchant in Spokane, who had known the appellant for some three years, testified that on the evening of October 26, 1929, the appellant came to his place of business and bought a Colt's automatic, 45-caliber pistol; that he had sold the appellant a box of ammunition containing bullets and shells similar to the bullets and shells found by the officers; and that it was an odd type of ammunition manufactured at the Frankfort Arsenal in 1927. The officers also found a package of cellonap in the express office. A Mrs. Bell, a witness on behalf of the state, testified that on October 29, 1929, she had sold a package of cellonap to two men which compared in size, shape, and appearance to the one found by the officers.

Violet Touissant testified on behalf of the state that she had known the appellant since 1928; that she knew him as George Dively, George White, and Cummings; that from August to October, of 1929, she saw the appellant intermittently in and about the Milwaukee Hotel at Spokane, where she was employed; that on the evening of October 29, the appellant came into her room at the Milwaukee Hotel and negotiated with her to buy her Pontiac automobile, agreeing to pay the sum of $800 therefor, stating that he would have the money the following evening, as he expected to 'take the express office that night.' She next saw the appellant about 2 o'clock the next afternoon as she was parking her car near the Savoy Hotel in Spokane; that at about 5 o'clock on the same afternoon the appellant came to her apartment in the St. Helens accompanied by a man whom he introduced as 'Bill'; that appellant was carrying a grip from which he took two guns, one a large gun and the other a small one. He gave the smaller gun to 'Bill' and the other he stuck in his trousers. In the grip was a small package similar to the package of cellonap found by the officers in the express office following the robbery, and similar to the one sold by Mrs. Bell at Britt's store to two men on the 29th day of October.

This witness further testified that about 7 o'clock on the evening of October 30, as she went to work at the Milwaukee Hotel, she found that her Pontiac automobile had disappeared from the place where she had parked it. The next evening the appellant, under the name Cummings, called her by phone from some place undisclosed by the evidence. During the conversation she informed him she had reported the theft of her car to the police at Spokane, whereupon he requested her to imform the police officers that she had found her car. Two days later he called her from Helena, Mont., stating that the police had 'grabbed' his car, but that he could procure its release if she would send him a bill of sale for the car under the name of Frank Moore. In this conversation he directed her to take his grip at the Milwaukee Hotel and burn it, which she did. The following day he called her from Butte, Mont. Later she went to Montana and recovered her car.

James W. Jewett, clerk of the Placer Hotel at Helena, Mont., identified the appellant as the man who had registered at that hotel on the afternoon of October 31, under the name George Moorer.

Finally the appellant was apprehended and three officers brought him by train from Bryan, Ohio, to Spokane, Wash. While en route a conversation occurred between one of the officers and the appellant, during which the latter admitted he had participated in the robbery of the express office, but denied he fired the shot into the body of Ivester; admitted he had taken the Pontiac coupé automobile belonging to Violet Touissant and that he and his confederate had used it in driving beyond the city limits where they split the 'swag,' and thereafter he alone drove to Helena, Mont.; admitted he ordered Johnson into the rear room at the point of a gun, and tied his hands with a shoestring.

Objection is made to the information on the ground that it is duplicitous. Omitting the formal parts,...

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22 cases
  • State v. Todd
    • United States
    • Washington Supreme Court
    • 17. September 1970
    ...we do not necessarily apply the rule that a failure to object to error at the trial level waives the error on appeal. State v. Miller, 164 Wash. 441, 2 P.2d 738 (1931); State v. Griffith, 52 Wash.2d 721, 328 P.2d 897 (1958). An instruction similar to the one at issue here has been used befo......
  • State v. Condon
    • United States
    • Washington Supreme Court
    • 8. Januar 2015 effect the death of another for the purpose of better enabling him to rob the person or premises of that other.’ ” State v. Miller, 164 Wash. 441, 447, 2 P.2d 738 (1931) (“When the appellant entered the express office [intending to rob it] and saw two men present, he may have very hastil......
  • State v. Tyler
    • United States
    • Washington Supreme Court
    • 5. März 1970
    ...9.48.030(3). State v. Self, 59 Wash.2d 62, 366 P.2d 193 (1961); State v. Burnett, 37 Wash.2d 619, 225 P.2d 416 (1950); State v. Miller, 164 Wash. 441, 2 P.2d 738 (1931). The record contains ample evidence to sustain the verdict on both theories of murder in the first Accordingly, the judgme......
  • State v. Anderson
    • United States
    • Washington Supreme Court
    • 22. August 1941
    ...have stated, the double aspect in which the information was drawn is sanctioned by the decisions of this court. State v. Fillpot and State v. Miller, supra. an information is not duplicitous. Nor is it defective in not stating in specific detail the facts and elements of the burglary or rob......
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