State v. Schafer

• Decision Date: 07 April 1930
• Docket Number: 22073.
• Citation: 286 P. 833,156 Wash. 240
• Parties: STATE v. SCHAFER.
• Court: Washington Supreme Court

286 P. 833

156 Wash. 240

STATE v. SCHAFER.

No. 22073.

Supreme Court of Washington, En Banc.

April 7, 1930

Appeal from Superior Court, Mason County; John M. Wilson, Judge.

Arthur Schafer was convicted of murder, and he appeals.

Affirmed.

O. M Nelson, of Montesano, and Emmett G. Lenihan, of Seattle, for appellant.

J. W Graham, of Shelton, for the State.

HOLCOMB J.

This case was before a department of this court on certain motions in which an opinion was filed in State v. Schafer, 282 P. 55.

Most of the matters of record were there referred to and the issues there stated. In the opinion therein it was not stated that there had been a change and substitution of attorneys of record for appellant after the appeal was taken and a short bill of exceptions served, certified, and filed.

By reason of the decision of the court in that matter, the entire statement of facts could not be certified and brought to this court. We therefore are now compelled to consider the case wholly upon the short bill of exceptions and the transcript certified by the clerk.

A complete review of the trial being infeasible, since this is a capital case involving the supreme penalty, such questions as are reviewable have been examined with extreme care, with no disposition 'to draw the line too closely, and prefer to accord the condemned man every possible opportunity to show error to his prejudice' ( State v. Bailey, 147 Wash. 411, 266 P. 163, 164 infra), being persuaded, however, that the crucial questions on this appeal are probably determined as justly and correctly as if the whole record were here.

Inasmuch as the entire record is not here, some of the assignments made by present counsel for appellant, such as errors in the instructions by the trial court, cannot now be considered. State v. Callaghan, 107 Wash. 486, 182 P. 594; State v. Greenwald, 129 Wash. 159, 224 P. 386; Staples v. Esary, 130 Wash. 521, 228 P. 514; State v. Harder,

130 Wash. 367, 227 P. 501.

Another assignment of error is that the clerk's record does not affirmatively show the presence of appellant at all stages of the trial.

An examination of the record discloses that it was rather fragmentary and imperfect. It does, however, affirmatively show the personal presence of appellant at the opening of the trial on December 17, 1928, with his attorney. It also shows his personal presence with his attorney at the reception of the verdict and also at the time of being sentenced.

It is earnestly contended that this falls far short of the requirements of our Constitution (section 22, art. 1) and of our statute (Rem. Comp. Stat. § 2145).

Those same constitutional and statutory provisions were considered by us in State v. Bailey, 147 Wash. 411, 266 P. 163, also a capital case, where the supreme penalty had been imposed and where there was no affirmative showing contrary to the record. Our holding in State v. Costello, 29 Wash. 366, 69 P. 1099, a felony, but not a capital case, to the effect that, where the minute entries of the clerk showed the accused to be present at the beginning of the trial, the presumption must follow that he was present throughout the remainder of the trial unless there was an affirmative showing to the contrary, governed in that case. Other cases from this court, where there had been admitted absences of the accused at certain stages of the trial, were there held to be not controlling. It was also there held that the cases cited from other jurisdictions under peculiar constitutional or statutory enactments were not controlling here.

Shapoonmash v. United States, 1 Wash. T. 188, a decision concurred in by two judges and dissented from by one of the territorial judges, is quoted and strongly relied upon by appellant. But this court seems never to have later approved the holding in that case, but has rather followed the reasoning of the dissenting judge therein. There was no affirmative showing here on behalf of appellant of his absence at any stage of the trial.

We feel bound by our prior decisions above cited as deciding this contention.

The denial of the motion for change of venue made by appellant before trial, supported by an affidavit of his attorney which set out an editorial contained in the leading newspaper of Mason county tending to show a high state of feeling against appellant, is forcefully and insistently argued as a most prejudicial error.

The supporting affidavit, among other things, in addition to setting forth the editorial above mentioned, stated: 'That affiant has talked with the sheriff and prosecuting attorney of Mason County and they have given affiant reason to believe that there is considerable excitement and prejudice against the defendant in said county. In fact the excitement and prejudice is so tense that these officers have deemed it advisable to keep the defendant in a jail outside of Mason County; that as affiant is informed and believes that said defendant is still kept in a jail outside of Mason County.'

This motion was heard by the trial court on December 15, 1928, which was a Saturday, and the cause was set for trial before a jury on the following Monday, December 17. The affidavit was not controverted by counsel for the state. The order of the trial court denying the motion is as follows: 'This cause coming on for hearing on the 15th day of December, 1928, upon motion of defendant for change of venue, and it appearing that the motion was filed at the time of argument, and copy served upon attorney for plaintiff just prior to argument by defendant, and no opportunity available to plaintiff to file counter-affidavits, and it further appearing that all witnesses for both plaintiff and defendant had theretofore been subpoenaed for trial of said cause, and that defendant was fully aware of all the alleged facts stated in his affidavit in support of said motion, long prior to the time when said cause was set for trial, and it further appearing that the defense in said cause is alleged insanity, now therefore, the said motion is denied. Exception allowed defendant.'

It is conceded that under the laws and decisions in this state it is a matter of sound discretion of the trial court to grant or deny a change of venue because of local prejudice to another county. It is argued, however, that, from the words of the order denying the motion, it was not through the exercise of the court's discretion, in the belief that no prejudice actually existed and that appellant could actually have a fair trial in Mason county, but that the ruling was made solely because of the late time of presenting it to the court.

In State v. Hillman, 42 Wash. 615, 85 P. 63, where affidavits containing newspaper articles showing prejudice were unanswered by the state and certain outside cases to the effect that, where a motion for change of venue supported by affidavits showing hostility and prejudice against a defendant are filed and are unanswered, it was held there it will be presumed that no showing of the absence of hostility and prejudice could be produced, and that the hostility and prejudice actually existed. Other cases referring to the nonresistance by affidavit or counter showing where there was such counter showing are also discussed in the brief.

We take judicial notice of the facts that, while Mason county is large geographically, its population is comparatively small. It is to be presumed that the trial judge, who is one of the regular judges presiding over the superior court in that county, is well acquainted with the population and conditions existing in that county.

The voir dire examination of the jurors to try this cause was not brought up. There is no showing either by the record showing what difficulty was experienced in procuring a jury to try the case, the number of peremptory challenges necessary to be exercised, nor any other proof made by appellant that he was not able to secure a fair and impartial jury.

The case of State v. Lindberg, 125 Wash. 51, 215 P. 41, 43, is practically decisive of this question. There in a prosecution arising out of violations of the state banking law by an officer of the bank, there was an uncontroverted affidavit on the part of the defendant tending to show great prejudice in certain parts of the county against the officers generally of the bank which had failed and its failure affected a great number of stockholders and many more depositors. Undoubtedly it was a matter of very great public interest and concern. We there said:

'* * * This affidavit is uncontroverted and contains recitals from which it can be inferred that prejudice to some extent existed in certain parts of the county against the officers generally of the particular bank, and were the question one on which this court could exercise an independent judgment, we are free to say that it would be permissible to reach a conclusion different from that reached by the trial court. But the question is not one of first instance in this court. By the express provisions of the statute (Rem. Comp. Stat. §§ 2018, 2019) the question is vested in the first instance in the discretion of the trial court, and we can review its ruling only for gross abuse. As we said in State v. Welty, 65 Wash. 244, 118 P. 9, and repeated in part in the later case of State v. Wright, 97 Wash. 304, 166 P. 645:

"It is apparent, from a reading of these sections, that the granting or denying of the change of venue is a matter resting entirely in the sound judicial discretion of the trial judge. Such being the statute, the ruling of the trial court cannot be reversed upon appeal, unless the record contains some evidence of its gross abuse, or it is shown that the court's ruling was arbitrary. Such has been our holding whenever such a

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