State v. Pepoon

• Decision Date: 28 March 1911
• Citation: 62 Wash. 635,114 P. 449
• Parties: STATE v. PEPOON.
• Court: Washington Supreme Court

114 P. 449

62 Wash. 635

STATE v. PEPOON.

Supreme Court of Washington

March 28, 1911

Department 2. Appeal from Superior Court, Stevens County; Henry L Kennan, Judge.

George L. Pepoon was convicted of first degree murder, and he appeals. Affirmed.

John B Slater and J. A. Rochford, for appellant.

W. P Bell, Geo. A. Lee, and H. G. Kirkpatrick, for the State.

DUNBAR, J.

The appellant was tried for murder in the first degree in the superior court of Stevens county, Wash., was found guilty as charged in the information, and sentenced to life imprisonment in the penitentiary. The information upon which he was tried is as follows: 'H. G. Kirkpatrick prosecuting attorney in and for the county of Stevens and state of Washington, comes here into court, and in the name and by the authority of the state of Washington, gives the court to understand and be informed that the said defendants, George Pepoon and Ray Wilcox, are hereby charged with the crime of murder in the first degree, committed as follows, to wit: That on the 27th day of August, A. D. 1909, in the county of Stevens and state of Washington, the said George Pepoon and Ray Wilcox, then and there being, did then and there unlawfully and feloniously, and with a premeditated design to effect her death, kill and murder Edith Pepoon, by then and there unlawfully and feloniously, and with a premeditated design to effect the death of the said Edith Peopoon, administering and giving to her, the said Edith Pepoon, strychnine, which said strychnine so administered by the said George Peopoon and Ray Wilcox was a deadly and dangerous poison, and which said strychnine so administered by the said George Pepoon and Ray Wilcox to the said Edition Peopoon did cause her to languish and die, and was by the said defendants administered and given unlawfully and without justifiable or excusable cause; contrary to the statute in such case made and provided, and against the peace and dignity of the state of Washington.' The appellant alone was tried; Ray Wilcox who was informed against jointly with him not having been arrested by reason of his flight from the country.

The first assignment of error involves the sufficiency of the information; the contention being that it does not allege facts sufficient to constitute a crime under the laws of the state of Washington, in that the information for murder does not set forth that the averments were on the oath of the prosecuting attorney. Conceding the demand of the statute to be as contended for by learned counsel for appellant, we think the requirements have been fully met by the information. It is true that the prosecuting attorney does not say in words that he makes the statements under oath, but he takes his oath that he is the prosecuting attorney, that the information is true, and that it is made for the reason that the grand jury is not in session. The facts upon which the information is based are certainly set forth in the information, the truth of which is sworn to, and the information thereby becomes a part of the affidavit which it is claimed the law demands. The cases cited by appellant do not sustain his contention. State v. Minor, 193 Mo. 597, 92 S.W. 466, involves a case where the information was held insufficient because it was not based upon the oath of the prosecuting attorney, which, as we have seen, this information is. The other case cited, State v. Platner, 196 Mo. 128, 93 S.W. 403, is squarely against the appellant's contention. The information in that case is not disclosed by the opinion, but it may be presumed from what is said by the court that, on the question involved here, it was substantially the same as the information in this case. All that the record discloses is the following statement of the court: 'The first point presented on this appeal is as to the sufficiency of the information, which is claimed to be insufficient upon the ground that it is nowhere stated therein that it is made upon the oath of the prosecuting attorney, nor upon his official oath. The information is in the language of the statute, and duly verified by the prosecuting attorney in accordance thereto. It is sufficient.'

The second assignment is based upon the alleged error of the court in permitting the prosecuting attorney to make an argument to the jury, while making his opening statement of the facts which he expected to prove, in violation of section 1, c. 86, Laws 1909, which provides that nothing in the nature of comments or arguments shall be allowed in opening a case. The appellant has contented himself with the general statement that there was a flagrant violation of this law, without specifying the particular language which it is claimed constituted the argument. We have, however, carefully read the opening statement, which is very circumstantial and lengthy, and are not able to say that the criticism is justified. It is sometimes difficult for one to make a long, detailed statement of facts without seeming to draw some slight inferences. It would probably be permissible for an attorney in his opening statement to say, 'Gentlemen of the jury, to show the animus in this case we will prove the following state of facts,' stating them. That would not be different in principle from stating, 'We will prove such and such a state of facts, thereby showing the animus;' and that is the most that could be said of the statement in this case. And whenever such statement was objected to, counsel cheerfully desisted, always disclaiming any intention of making an argument. The object of this inhibition doubtless is to prevent prejudicing the minds of the jurors by injecting into the statement arguments which would not be admissible under the testimony, but which might maintain lodgment in the minds of the jurors and affect their verdict. But in this case no such result could have obtained, for the record shows that an argument, just such as it is claimed was made, would have been fully justified by the testimony which was produced, so that, even conceding appellant's contention, there was no prejudice.

It is next contended that the court erred in giving instruction No. 4, in that the jury was not instructed upon the law of murder in the second degree and of manslaughter. The fourth and fifth instructions upon that subject were as follows:

'(4) The statute of this state defining murder in the first degree, so far as this case is concerned, is as follows: 'The killing of a human being, unless it is excusable or justifiable, is murder in the first degree when committed with a premeditated design to effect the death of the person killed.'

'(5) The statutes of this state further provide that no person shall be convicted of murder unless the death of the person alleged to have been killed and the fact of the killing by the defendant as alleged are each established as independent facts beyond a reasonable doubt.'

It is no doubt true that the crime of murder includes the lesser crimes of murder in the second degree and of manslaughter and it is equally true that the jury has a right to determine the degree of crime which was committed. But that determination must, of course, be based upon evidence. That is all that gives the determination any value. The anxiety of the law is to give the defendant the full benefit of trial by jury on all questions of fact, and it will not give its sanction to a farcical and arbitrary determination of any alleged fact which the jury has had no possible means of determining. If the defendant had been informed against for manslaughter, and the state had failed to produce any evidence tending to show the commission of manslaughter, as it did fail in this case to do, there would have been no duty resting upon the jury, and it would clearly have been the duty of the court to discharge the jury, because there was nothing upon which the function of a jury could take hold, and to discharge the defendant. The legal function of the jury is not at all changed because the question for determination arises upon an information in the first degree. We are, of course, not speaking with reference to weight of testimony, but of a case where there is no testimony whatever to weigh, tending to show the commission of the lesser degree. Such is the case at bar with reference...