State v. Stowe

• Decision Date: 25 November 1891
• Citation: 3 Wash. 206,28 P. 337
• Parties: STATE v. STOWE. [1]
• Court: Washington Supreme Court

28 P. 337

3 Wash. 206

STATE v. STOWE. ^[1]

Supreme Court of Washington

November 25, 1891

Appeal from superior court, Pierce county; FRANK ALLYN, Judge.

George Stowe was convicted of murder, a new trial was denied, and he appeals. Reversed.

F L. Kuhn and Heilig & Heuston, for appellant.

W H. Snell, Pros. Atty., and Chas. Bedford, for the State.

DUNBAR J.

Between 10 and 11 o'clock, on the evening of the 5th of October 1889, Enoch Crosby, an inoffensive and respected citizen of the city of Tacoma, was shot down in cold blood in the public streets of that city. The victim of this murderous and fatal assault lived long enough to give a brief account of the murder. His statement was that he had been down to the depot to see some friends, and on returning home while walking quietly along C street, two men started out from the side of the barn which fronted on the street, and when within five or six feet of him, without making any demands, or giving any warning, shot him through the body with a revolver; that one of them then went in one direction, and the other in an opposite direction. The motive for this dastardly crime was never disclosed, as the victim, when asked if they had robbed him, had become so exhausted that he could not answer. This crime was committed on Saturday. On the next Wednesday, the 9th of October, the appellant was arrested on suspicion of having committed the crime, and a day or two later one Hoyt was also arrested, and there was a joint information filed against them, charging them in due form of law with Crosby's murder. We have no record of the trial of Hoyt, but appellant was convicted of murder in the second degree, and sentenced to imprisonment in the state penitentiary for 20 years, and appeals to this court, assigning as error: First, that the information laws were not applicable to this state, and that the defendant was entitled to an indictment by the grand jury, the crime having been alleged to have been committed before the admission of Washington into the union of states, and before the state constitution went into force and effect; second, that the evidence does not warrant the verdict; and, third, that a new trial should have been granted on the ground of newly-discovered evidence.

The first assignment, though urged at length in the brief, was not relied upon at the trial, as that question had lately been settled adversely to appellant's contention in Lybarger v. State, 27 P. Rep 449. With the view this court entertains as to the third assignment of error, it will not be necessary to discuss the second.

It was claimed by the appellant that he was in the town of Tumwater a village between 30 and 40 miles from Tacoma, on the day on which Crosby was murdered, pursuing the vocation of an itinerant tinker or mender of tinware; that he was there from Saturday to Sunday morning; and different citizens of Tumwater swore that they saw him there during the day; and witness Tice, who was keeping the hotel at Tumwater, swore that he stayed at his house on that Saturday night, October 5th; that he woke him up to breakfast the next morning, (Sunday;) that he ate breakfast there. It seems there was no register kept at Tice's hotel. After the trial, and within the time allowed by law, appellant moved the court for a new trial on the ground of newly-discovered evidence, which motion was overruled. The newly-discovered evidence on which appellant based his application for a new trial was the affidavit of Martha E. Eddy, who swore that the defendant came to her house in Tumwater, between the hours of 11 o'clock A. M. and 2 P. M. on a certain Saturday in October, 1889, after the commencement of the district school in Tumwater; that he requested work at mending tin ware, and indicated that he was deaf and dumb. This was followed by the affidavit of George Gelbach, clerk of the Tumwater school-district, who swore that the term of school for that year begun September 30th; and inasmuch as the defendant was arrested on the 9th of October, and was confined in jail at Tacoma during the rest of the month of October, it must necessarily follow that if Mrs. Eddy saw him on Saturday, in October, it must have been the first Saturday, or October 5th. There is also the affidavit of Clark Biles, a resident of Tumwater, who swore that he was a resident of Tumwater school-district, and that on the first Saturday of the school term for the year 1889 he saw the defendant, a deaf and dumb tinker, or mender of tinware, in the town of Tumwater, between 2 and 3 o'clock of said day. It may be stated in this connection that the affidavits show that the defendant was in the habit of imposing himself upon the communities where he plied his trade as a deaf and dumb man, claiming that he could get more work by reason of such supposed afflictions. Respondent stoutly insists that this showing was not sufficient, and cites many cases which announce the doctrine that applications for a new trial on the ground of newly-discovered evidence are regarded with distrust and disfavor, and that courts require the very strictest showing of diligence, and all the other facts necessary to give effect to the claim. The rule laid down by Hayne on New Trial and Appeal (section 88) is as follows: " First, that the evidence, and not merely its materiality, be newly discovered; second, that the evidence be not cumulative merely; third, that it be such as to render a different result probable on a retrial of the cause; fourth, that the party could not with reasonable diligence have discovered and produced it at the trial; and, fifth, that these facts be shown by the best evidence of which the case admits." The Code, however, (section 1105,) simplifies the requirement, and makes the new trial admissible for "newly-discovered evidence, material for the party making the application, which he could not with reasonable diligence have discovered and produced at the trial." But, after all is said and done, any attempt to lay down rules of construction for this section is simply an enlargement in words of the idea so compactly expressed in the statute. If it is material testimony, it can only be material because it would tend to strengthen the applicant's case, and probably...