State v. Stentz

• Decision Date: 01 October 1902
• Parties: STATE v. STENTZ.
• Court: Washington Supreme Court

70 P. 241

30 Wash. 134

STATE v. STENTZ.

Supreme Court of Washington

October 1, 1902

Appeal from superior court, Spokane county; William E. Richardson Judge.

Frank Stentz was convicted of manslaughter, and appeals. Reversed.

Sullivan Nuzum & Nuzum, for appellant.

Horace Kimball and Miles Poindexter, for the State.

WHITE J.

The information in this case was filed by the prosecuting attorney of Spokane county on November 5, 1901, charging the appellant with the crime of manslaughter.

The information, omitting formal parts, is as follows: 'That the said defendant, Frank Stentz, in the county of Spokane and state of Washington, on the 16th day of October, 1901, did unlawfully, feloniously, wantonly, negligently, recklessly, and willfully drive a team of two horses, the said horses then and there being hitched to a wagon, upon a certain road, the same then and there being a public highway, in a manner likely to endanger the persons and lives of others, and so did then and there, in the commission of said unlawful act, unlawfully and feloniously run and drive the said horses and wagon on, over, and upon M. W. Orton, and so did then and thereby, as aforesaid, unlawfully and feloniously inflict upon the said M. W. Orton certain mortal injuries, by and on account of which injuries the said M. W. Orton then and there died, and so the said Frank Stentz did then and there, in the manner aforesaid, involuntarily, but in the commission of the unlawful act aforesaid, unlawfully and feloniously slay and kill the said M. W. Orton.'

On the information, the name of R. M. Sperry, among others, was indorsed as a witness for the state. While impaneling the jury in the cause, said R. M. Sperry was drawn as a juror, and, upon being questioned as to his competency, testified in substance that he knew the defendant by sight, and that he had no opinion as to the defendant's guilt or innocence. This question was then asked him by the prosecuting attorney: 'I ask you to state whether or not from any cause, whether I have mentioned it or not, you would be hindered or impeded in giving a fair and impartial trial to the defendant.' He answered: 'The only cause is that I am liable to be a witness in the case. For that reason, I guess I would not be eligible to sit on the jury.' He further testified that that fact would not prejudice or bias him for or against the defendant, and that he felt satisfied he could give the defendant a fair and impartial trial. On cross-examination, he said he had not been subpoenaed as a witness, but he 'distrusted that there was a subpoena issued for him which had not yet been served'; that 'some of the prosecuting attorneys had talked with him with reference to something in the case.' The following appears from the record: 'Mr. Nuzum (for defendant). I submit, your honor, that this juror's name appears as a witness in this information,--indorsed on the information, and, although the subpoena has not been served on him, his name appears here as one of the witnesses for the state, and we submit a challenge for cause. Mr. Poindexter (prosecuting attorney). I don't know anything that would exclude him on that ground; he states positively he formed no opinion as to the guilt or innocence of the defendant. The Court. I think a juror may be called as a witness in a case; but I don't hink that the court, in the exercise of sound discretion, would permit a party who is likely to be called as a witness, if he is advised of that fact beforehand, to sit on a jury. The answer that this juror makes to the question would not disqualify him as a juror. If you are able to state at this time, Mr. Poindexter, that you will not call him as a witness in the case, I think the challenge ought to be denied; if he is going to be a witness in the case, I think the objection ought to be sustained. Mr. Poindexter. I will say I will not call him as a witness if he is chosen as a juror. Mr. Nuzum. On that statement alone, I think our challenge ought to be sustained. There is something he wants to prove by him if he don't sit, but he is willing to have him sit as a juror without testifying. I don't think that comes within the provision of the law that we are entitled to a fair and impartial trial, as in a case of this kind we are entitled. The Court. As I have already stated, I don't hink the juror's answers are sufficient to disqualify him. The only ground upon which I could sustain a challenge in this case is that the juror might be called as a witness. I don't think the court ought to permit a juror to sit if the court is advised that he is going to be called as a witness. Mr. Sullivan. I think when the prosecutor says if he is called on the jury he will not call him as a witness--I think that ought to disqualify the juror; they have talked to him; we haven't. The Court. The challenge is denied. Defendant excepts. Exception allowed.' The impaneling of the jury in the case then proceeded, the appellant having exercised his fifth peremptory challenge by excusing O. W. Piper, one of the jurymen. Thereupon one J. E. Gibbs was drawn as a juryman, and, upon being questioned as to his competency and qualifications, by the counsel for the state, testified in substance: That he had formed an opinion from reading newspaper articles; that he had no fixed opinion; that he could disregard it; that he still had the opinion so formed; that it would require some evidence to remove it; that what he had read would have no weight, or affect him in any way upon the trial. This juror was challenged by the appellant, and the challenge denied. The appellant thereupon excused the juror Sperry, thereby exercising his sixth and last peremptory challenge. The impaneling of the jury was then completed. The jury, after a trial, returned a verdict of guilty. On this verdict, judgment was entered.

The evidence in this case, exclusive of the testimony of the juror Sperry, tended to show that there were four men in a wagon drawn by a bay and a gray horse; that this wagon ran over the deceased, who was on a bicycle, thereby causing his death; that the team was running towards Cheney, and on the public road; that the driver was holding the lines tightly. The deputy sheriff testified that he had a talk with the accused after his arrest. The appellant told the deputy sheriff that the horses were running away; that when he went to turn to the right, in order to pass the man on the bicycle, the man turned the same way, and he tried to turn the other way, but the team got beyond his control, striking the man's bicycle; that he did not know until after he was arrested that he had run over and killed the man. There as evidence tending to show that, after the team ran over the deceased, the persons in the wagon attempted to avoid others, and went on an unfrequented road. There was evidence tending to show that the appellant and the three others in the wagon were out on a hunting expedition; that they had two kegs of beer, and had been drinking beer before the commission of the offense charged; and that there was also a small demijohn of whiskey in their possession. The killing of Orton took place very near the junction of the Mullinix and Lance Hill roads, about a mile and a half or two miles from Cheney. The place where the juror Sperry met the men in the wagon was about two miles southwest of this point. Mr. Sperry was called by the state as a witness, and testified, 'that a team, one horse light and the other dark, hitched to a wagon with four men in it, passed him on the public road about eight o'clock on the morning of the commission of the offense; that the men in the wagon were acting rather jolly; that they hallooed and yelled at him; that their actions were as if they were in pretty good spirits; that they motioned with their hands to him, and hallooed something, but he could not distinguish what they said; that they were driving pretty fast,--unusually fast; that the fact that they were driving so fast attracted his attention; that he did not consider the team was running away; that they were going towards Cheney.' 'Q. Did they increase the speed while you saw them? A. Yes. They increased the speed some. Q. What did they do with reference to that? A. Well, when I met them they were hallooing, and I did not recognize who they were, and I presumed it was somebody that knew me, and I knew up my hand, and said, 'Halloo.' This is when they went by. And the fellow that was driving, he kind o' came up this way (indicating) with the lines, and gave a kind of whoop, as though they were having a good time, and then they went a little faster.' He further identified the appellant as the man who was driving.

The first error assigned is the denial of the challenge for cause by the court to the juror Sperry. The constitution of the state provides that an accused person shall be tried by an impartial jury, and that offenses heretofore required to be prosecuted by indictment may be prosecuted by information, as shall be prescribed by law. It is the duty of the prosecuting attorney, whenever a public offense has been committed, and the party charged is not under indictment for the offense and the court is in session, and the grand jury is not in session, to prosecute the offender by information. Section 6802, Ballinger's Ann. Codes & St. In order to file such information, it is the duty of the prosecuting attorney to inquire into and make full examination of all the facts and circumstances touching the commission of the offense. The names of the witnesses known to the prosecuting attorney at the time of filing the information must be indorsed thereon. Section 6832, Id. The name of the juror Sperry was indorsed on the information against the appellant at the time the information was filed. From...