State v. Miller

• Decision Date: 02 May 1934
• Docket Number: 24774.
• Citation: 177 Wash. 442,32 P.2d 535
• Parties: STATE v. MILLER.
• Court: Washington Supreme Court

32 P.2d 535

177 Wash. 442

STATE v. MILLER.

No. 24774.

Supreme Court of Washington

May 2, 1934

Department 1.

Appeal from Superior Court, Yakima County; Dolph Barnett, Judge.

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

Affirmed.

Charles F. Bolin and E. L. Bennett, both of Poppenish, for appellant.

O Sandvig and M. C. Delle, both of Yakima, for the State.

BEALS Chief Justice.

During the month of May, 1931, the defendant, Byron Miller, then 39 years of age, was living with his wife and family, which included his sister-in-law, Gladys Miller, on the outskirts of the town of Mabton. Miller had lived in and around this town the greater portion of his life, having worked as farm hand and sheep herder for different residents of the community.

At this time George Warring was marshal of Mabton, and also held a commission as a deputy sheriff of Yakima county. Several times Mr. Warring had sent Miller home when the latter was under the influence of liquor, and more than once Mrs. Miller had telephoned Mr. Warring to come to the Miller home and quiet her husband, who was often drunk and abusive. Once Mr Warring had locked Miller up, but on all occasions it would seem that Mr. Warring had been very generous and considerate in his treatment of Miller, and had endeavored only to help him without proceeding to extremities.

For several days prior to May 26, 1931, Miller was unemployed and remained about his home drinking considerable liquor. Early in the morning of this day, Miller became angry at his wife, who left the house, stating that she was soing to telephone for help. Mr. Warring responded to this call and, upon his approach to the Miller house and Before he had even spoken to defendant, was by defendant shot down in cold blood and mortally wounded; death ensuing the following day.

May 27, 1931, defendant was, by information, charged with the crime of murder in the first degree, and was on the same day arrested and brought Before the court. The next day defendant, by his attorney who had been appointed by the court to represent him, pleaded not guilty by reason of insanity at the time of the commission of the crime charged, also stating in his plea that the insanity still existed. On the same day defendant's counsel moved for an order appointing a commission of three disinterested and qualified physicians to examine defendant and report as to his sanity.

It is stated that, when defendant was first arraigned, he said, in response to a question by the court as to whether or not he desired counsel, that he did not, that he was guilty and did not need an attorney, and that the court refused to accept such a plea and appointed Mr. Charles F. Bolin to represent defendant, who later, by his counsel, entered the plea above referred to. Mr. E. L. Bennett was then associated with Mr. Bolin as counsel for defendant.

The case was set for trial for May 29, but was later continued to June 8. Defendant moved for a further continuance, which was by the court refused. June 8 the case came on regularly for trial upon the information and defendant's plea Before the court and a jury, resulting in a verdict of guilty of murder in the first degree, together with a special verdict to the effect that the death penalty should be inflicted. Pursuant to these verdicts, defendant was adjudged guilty as charged and sentenced to death; from which judgment defendant has appealed to this court.

The course of the appeal was greatly delayed; the case not having been ready for argument here until the January term of 1934.

Appellant presents thirty-two assignments of error, which will be discussed in order.

In the first place, appellant contends that the trial court erred in failing to grant his motion for a commission to examine into and report upon his sanity. Appellant did not take the stand, and the killing was not denied; appellant relying only upon his plea of mental irresponsibility. Appellant's motion for the appointment of a commission appears in the transcript as filed May 28, and was supported by an affidavit of his counsel. No reference to the application is found in the statement of facts, and the record contains nothing which indicates that the trial court failed to exercise its discretion in considering appellant's motion, or that in denying the application the court in any wise abused the discretion vested in it by law. It does not appear from the statement of facts that any later motion was made on behalf of appellant for the appointment of any commission to examine appellant concerning his sanity, and we are unable to hold that the trial court committed error in failing to appoint the commission asked for by appellant.

In the next place it is argued that the trial court erred in denying appellant's motion for a continuance to a date later than June 8. This matter rested largely within the discretion of the trial court, and no abuse of this discretion appears. Certain affidavits, which were probably filed in support of appellant's motion for a continuance, appear in the transcript, but, not having been made part of any statement of facts and being no wise identified by any order in the record, cannot be considered in connection with the question presented by this assignment of error. Mattson v. Eureka Cedar L. & S. Co., 79 Wash. 266, 140 P. 377; Walker v. Walker, 151 Wash. 480, 276 P. 300; Marsh v. West Fir Logging Co., 154 Wash. 137, 281 P. 340; Keyes v. Ahrenstedt, 156 Wash. 526, 287 P. 35; Dailey v. Dailey, 163 Wash. 104, 299 P. 988.

Appellant next contends that his trial was illegal because the jurors Before whom he was tried were impaneled to serve only up to and including June 8, and that the impaneling of the jury was not completed until June 9. The statement of facts recites that the case was called for trial June 8, 1931, and that:

'Thereupon proceedings were had and testimony taken in said cause as follows, to wit:

'A jury was impaneled and sworn.

'Thereupon court adjourned to the following day, June 9th, at which time the following proceedings were had. * * *'

We find in a supplemental transcript filed by appellant certain extracts from the clerk's minutes which appear to be at variance with the statement of facts in regard to this matter. The statement of facts cannot be contradicted by the filing of a transcript of the clerk's minutes. The statement of facts was certified as correct by the trial judge, and must be accepted as a true narration of what occurred. It appearing that the jury was impaneled on June 8, the fact that the trial lasted several days thereafter is immaterial. Beach v. Seattle, 85 Wash. 379, 148 P. 39. It nowhere appears that appellant at the time made any objection to the impaneling of the jury; the question, as far as the record shows, being raised for the first time on the appeal to this court.

Appellant next contends that the trial court erred in refusing to direct that he be furnished with a statement of facts and a transcript of record on appeal. It appears that both these matters were provided for appellant, and we find no merit in this assignment of error.

We shall now discuss appellant's assignments of error based upon rulings of the trial court in connection with the evidence introduced or offered by the respective parties.

A. W. Warner, called as a witness for appellant, testified that he had known Miller for about twenty years, and had also known his parents, both of whom had been confined in asylums for the insane. Appellant had worked for the witness on and around hay balers, and, in response to a question as to how appellant would act while engaged in this occupation, the witness replied: 'Once in a while he would go around the stack when he was supposed to be cleaning up, and stand leaning on the fork with his head down, and not say a word.'

The witness later stated that appellant would be 'just thinking about something the way it looked.' It appeared from the testimony of the witness that his observation of appellant's conduct had not been close; the witness having testified that he had not been in appellant's company very much even when appellant was working for him. To a question by appellant's counsel as to whether or not the witness would say appellant was sound of mind, the state objected. The objection having been sustained by the trial court for the reason that the witness had not testified to facts which would reasonably support any opinion on the part of the witness as to appellant's mental condition, appellant then offered to prove that the witness would testify from his long association with appellant that appellant was insane. Counsel for the prosecution, in reply to this offer, stated that he had no objection provided that the witness related facts upon which he based his conclusion. Appellant's counsel made no offer to prove any further facts, and it clearly appeared from the cross-examination of the witness that in the latter's opinion appellant was insane.

It is a rule in this state that the testimony of nonexpert witnesses is competent to show insanity. State v. Brooks, 4 Wash. 328, 30 P. 147; State v. Craig, 52 Wash. 66, 100 P. 167; Rust v. Washington Tool & Hardware Co., 101 Wash. 552, 172 P. 846; Halbach v. Luckenbach Steamship Co., 152 Wash. 492, 278 P. 178; State v. Wilkins, 156 Wash. 456, 287 P. 23; State v. Schneider, 158 Wash. 504, 291 P. 1093, 72 A. L. R. 571.

In the case of State v. Wilkins, supra, the rule was laid down that nonexpert witnesses, in order to qualify themselves to testify as to the insanity or mental irresponsibility of a party to an action, must show not only a sufficient acquaintance with the person to enable them to form an opinion, but must also testify at least in a...