State v. Riley

• Decision Date: 31 August 1923
• Docket Number: 17692.
• Court: Washington Supreme Court
• Parties: STATE v. RILEY et al.

218 P. 238

126 Wash. 256

STATE v. RILEY et al.

No. 17692.

Supreme Court of Washington

August 31, 1923

Department 2.

Appeal from Superior Court, Clallam County; John M. Ralsten, Judge.

L. H Riley and another were convicted of murder in the first degree, and they appeal. Affirmed.

Pemberton J., dissenting.

George F. Vanderveer, of Seattle, for appellants.

John M Wilson, of Port Angeles, for the State.

PARKER J.

The defendants, Riley and Butt, were charged by information filed in the superior court for Clallam county with the crime of murder in the first degree as being committed by them in that county on March 25, 1922, while they were jointly engaged in the commission of the crime of robbery. Their trial jointly in that court, sitting with a jury, resulted in verdicts of guilty as charged being rendered against both of them, and the determining of the punishment both of them shall suffer to be life imprisonment. Judgments and sentences were thereafter accordingly rendered by the trial court, from which the defendants have both appealed to this court.

The robbery and murder in question were committed in the nighttime between the hours of 8 and 9 o'clock in the evening of March 25, 1922, in the recreation hall of the Discovery Bay Logging Company, a hall wherein the employés of that company were accustomed to gather in the evenings and indulge in card games and other recreation. At the time in question there were some 50 men assembled in the hall, when two masked robbers, armed each with two revolvers, entered the door and ordered everybody to raise their hands and face the wall. One of the robbers then seated himself on a box near the door and covered the crowd with his two revolvers, while the second robber searched the men and took money and other property from them aggregating several hundred dollars in value. While this was in progress, covering a period of 10 to 20 minutes, a man outside the building, who afterwards became a witness for the state, accidentally saw through the window what was going on in the hall, when he hurriedly secured a shotgun, and, coming again to the window, fired through it at the robber stationed on the inside at the doorway. Immediately that robber fired several shots toward the window, one of which killed Ray Leight, who was standing near the window facing the wall, as he had been ordered. This shot, resulting in Leight's death, constitutes the murder for which appellants were tried and convicted. As to the robbery and the murder being thus committed by the two masked men then in the hall, the evidence is all but conclusive. Indeed, counsel for the defendants have not contended to the contrary. The only serious contention as to the facts, made in appellants' behalf, is as to the identity of the defendants as the two robbers who so committed the robbery and murder, and even as to this question of fact it is not argued but that the evidence was such as to warrant the submission of that question to the jury.

It is first contended in behalf of the appellants that the trial court erred to their prejudice in sustaining challenges made by the prosecuting attorney to several jurors upon the ground that they each were so conscientiously opposed to the death penalty that they would not under any circumstances vote for the infliction of such penalty. It is sufficient for present purposes that we quote from the examination and answers of one of these jurors touching his qualifications as a juror, since the examination and answers of the other jurors so challenged and rejected are in substance the same. The juror was asked and answered as follows:

'Q. If, in your judgment, the circumstances of a case should warrant it, could you vote to hang a man as a penalty for murder? A. No, sir.

'Q. Under no circumstances? A. No, sir.

'Q. No matter what the evidence might show? A. No, sir.

'Q. Nor how aggravated the case? A. I could not.'

Section 2142, Rem. Comp. Stat., touching the qualifications of jurors in the trial of an offense which may be punishable by death, reads as follows:

'No person whose opinions are such as to preclude him from finding any defendant guilty of an offense punishable with death shall be compelled or allowed to serve as a juror on the trial of any indictment or information for such an offense.'

This was enacted as a part of the statute law of this state at a time when murder in the first degree was punishable by death only, the court being required as a matter of law to render a judgment accordingly upon a verdict of a jury being returned finding an accused guilty of murder in the first degree. The Legislature of 1919 passed an amendatory act, defining murder in the first degree and prescribing the punishment therefor, reading in part as follows:

'Murder in the first degree shall be punishable by imprisonment in the state penitentiary for life, unless the jury shall find that the punishment shall be death; and in every trial for murder in the first degree, the jury shall, if it find the defendant guilty, also find a special verdict as to whether or not the death penalty shall be inflicted; and if such special verdict is in the affirmative, the penalty shall be death, otherwise, it shall be as herein provided.' Laws of 1919, p. 273; section 2392, Rem. Comp. Stat.

The argument of counsel for appellants seems to proceed, as we understand him, upon the theory that, since the death penalty does not now as a matter of law follow a verdict of guilty of murder in the first degree, neither the statutory rule above quoted nor the general rule of the same import in the absence of statute, has any application touching the qualifications of jurors to sit in the trial of a charge of murder in the first degree. Our decision in State v. Mahoney, 120 Wash. 633, 640, 208 P. 37, 40, seems to be conclusive against such contention. We there said:

'The fourteenth and fifteenth assignments raise objections made by appellant to questions asked jurors by the state as to their prejudice against the infliction of the death penalty. We think it was the duty of the state to secure for jurors those who were not opposed to the infliction of the death penalty in a proper case, in view of our statute permitting this form of punishment.'

In view of that somewhat summary disposition of the question, prompted by the then somewhat perfunctory manner of its presentation, we here notice the question in the light of the authorities which, we think, by their overwhelming weight, lead to the same conclusion, whether the question be decided in the light of section 2142, Rem. Comp. Stat., above quoted, or the general rule of the same import, apparently universally followed by the courts of this country in the absence of statute. In the text of 24 Cyc. 307, supported by many decisions there cited, we read:

'It is now well settled that in capital cases the state may challenge a juror for cause, who states that he has conscientious scruples against finding a prisoner guilty where the punishment is death, and while this rule is uniformly followed in the absence of any statute, in some cases the statutes now expressly so provide, or provide that persons having such scruples shall not be permitted or compelled to serve. The same rule applies, although under the statutes the jury are permitted to bring in a verdict of guilty 'without capital punishment,' or substitute imprisonment for the death penalty.'

Looking to the reason of the rule, we find it well stated by the Supreme Court of Indiana as early as 1850, in Gross v. State, 2 Ind. 329. After noticing prior decisions having to do with the question in connection with the law making murder in the first degree punishable only by death, the court holds the rule to be of the same force applicable to the state's then statutory law making such offense punishable by death or life imprisonment as the jury may determine, observing as follows:

'It is contended that these authorities are not applicable to the present case, inasmuch as by an act passed in 1846 a discretionary power is given to the jury to prescribe the punishment of death or of imprisonment for life, for the crime of murder in the first degree. The reason why a juror is considered disqualified by such scruples is that they would prevent him from performing his part as such juror in the due administration of the law. We think this reason applies with equal force, whether the law prescribes the single punishment of death, or invests the jury with a discrectionary power to inflict that punishment or another. If in the one case his scruples would not permit him to render a verdict in accordance with the law, in the other they would not permit him to exercise the discretionary power with which he is invested, and which it is essential he should exercise to carry out the spirit and intention of the law.'

The same view is tersely expressed by the Supreme Court of Arizona in Leigh v. Territory, 10 Ariz. 129, 138, 85 P. 948, 952, as follows:

'The rule only forces a defendant to accept a jury free to impose either the death penalty or imprisonment for life; and the territory has the right to a jury that will impose the graver penalty if warranted by the circumstances, untrammeled by any conscientious opinions against its infliction.'

In Demato v. People, 49 Colo. 147, 111 P. 703, 35 L. R. A. (N. S.) 621, Ann. Cas. 1912A, 783, the Supreme Court of Colorado similarly disposed of the question in the light of the statute of that state, making first degree murder punishable by either death or life imprisonment as the jury may determine, observing as follows:

'The juror's oath prescribes his duty. By the obligation thus imposed, he is to well and truly try the issues joined and a true verdict render according

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