State v. Susan

• Decision Date: 29 May 1929
• Docket Number: 21284.
• Citation: 278 P. 149,152 Wash. 365
• Parties: STATE v. SUSAN.
• Court: Washington Supreme Court

278 P. 149

152 Wash. 365

STATE v. SUSAN.

No. 21284.

Supreme Court of Washington, En Banc.

May 29, 1929

Appeal from Superior Court, Benton County; John Truax, Judge.

Antonia Susan was convicted of murder, and she appeals. Reversed and new trial ordered.

Wesley Lloyd and G. C. Nolte, both of Tacoma, for appellant.

Geo. O Beardsley, of Prosser, for the State,

BEALS J.

Prior to August, 1927, Frank Susan and his family were residing on a farm about 2 1/2 miles north of the town of Kennewick in Benton county. The family consisted of Frank Susan, the deceased; his wife, Antonia Susan, 53 years of age, the defendant; their married daughter, Annie Posick, 17 years of age, and her new-born babe; Annie's husband, Frank Posick; and Frank Susan, Jr., the 12 year old son of Frank Susan and the defendant.

The Susans were Croatians who came to the United States as man and wife in 1901. After living some time in the city of Tacoma, where the defendant operated a boarding house while her husband worked on the railroad, and soon after Annie Susan was married to Frank Posick, the two families, who had accumulated some money by dint of hard work and their instinct to save about March 1, 1927, jointly purchased the Benton county farm, which was valued at approximately $12,500. The title to the farm was taken in the name of Frank Posick, who explained that he had made a will to protect the one-half interest of his parents-in-law in the farm. Mr. and Mrs. Susan, having immigrated to America after they were grown, never learned to understand or speak English easily or fluently, although Mrs. Susan probably understands common words concerning the usual occurrences of her daily life and expresses herself in English concerning the same with some degree of facility.

At the outset we may say that a reading of the record, and in view of the importance of the case we have discarded the abstract and read the transcript of the testimony as contained in the statement of facts, satisfies us that Mrs. Antonia Susan is an ignorant woman, of a rather low order of mentality capable of and accustomed to much hard physical labor, a woman whose mind does not quickly assimilate or respond to ideas or conditions outside of the life of drugery and toil to which she was brought up in her Croatian home and which she followed, with some mitigation, due rather to conditions necessarily imposed by living in the United States than to any particular desire on her part, up to the date of her arrest charged with her husband's murder.

About 6 o'clock in the morning, August 5, 1927, Frank Susan was found, badly injured, lying in a small irrigation ditch on his farm, some distance from the house occupied by the family. He was alive and feebly trying to extricate himself from the excavation into which he had fallen. Help was summoned and Mr. Susan removed to his house, where he died before the close of the day. An autopsy demonstrated that the cause of his death was hemorrhage of the brain resulting from a hard blow from a blunt instrument on the bony mastoid process of the left ear.

August 30, following, an information was filed by the prosecuting attorney of Benton county charging defendant with the crime of murder in the first degree. Her trial resulted in a verdict of guilty, the jury recommending that the death penalty be not inflicted. From judgment entered on the verdict and a sentence of life imprisonment, defendant appeals.

Appellant has moved to strike respondent's brief. In our opinion the motion is without merit and the same is denied.

The state introduced a large amount of circumstantial evidence, including testimony as to alleged incriminating and conflicting statements made by appellant, tending to prove appellant guilty of the crime with which she stands charged. There was also some testimony as to possible motives which might have induced appellant to murder her husband. The record discloses evidence on the part of the state sufficient, if believed by the jury, to support a verdict of guilty of the crime charged in the information.

A brief statement of the facts disclosed by the testimony is necessary to a proper understanding of the questions to be determined on this appeal. Frank Susan, the deceased, was at times addicted to the excessive use of intoxicating liquor. He had been drinking heavily for a few days prior to his death and had been sleeping in the field practically on the ground, some of the new-mown hay forming a mattress and an old overcoat serving as a coverlet. During a portion, at least, of the night he received the injury which caused his death, the houses used on the farm were loose in and about this field. Shortly after Mr. Susan's death, appellant, together with Frank and Annie Posick, were arrested; the two latter being, after appellant was informed against, upon application of the prosecuting attorney, detained under bond by order of the court as material witnesses for the state. The evidence indicated that there had been some ill feeling between Mr. Susan and his son-in-law, Frank Posick, and also some slight friction between Mr. Susan and a neighbor with whom there was a disagreement over some water rights.

Horseshoes were removed from the hind hoofs of one of the horses belonging to the Susans, and the state introduced testimony to the effect that the wound on Frank Susan's head had not been made by these horseshoes, as the marks on the head of the deceased did not correspond in size or shape with any part of the horseshoes. Whether the fore hoofs of the horses were shod at all, and whether the deceased might not have been struck by the fore hoof of one of the horses or by the front of one of the rear hoofs, does not clearly appear from the evidence.

At the trial appellant was examined in the presence of the court as to her comprehension of the English language and her ability to express herself therein. After this examination the court ordered the swearing of an interpreter through whom appellant testified.

Appellant assigns error upon the refusal of the trial court to permit appellant's counsel to privately interview the witnesses Frank and Annie Posick and in refusing to reduce the amount of bail demanded of these witnesses, in permitting counsel for the state to propound questions which appellant contends were leading, in receiving alleged improper evidence on rebuttal, in refusing to discharge the jury and declaring a mistrial on account of misconduct of counsel for the state, in hearing defendant's motion for a new trial in the absence of counsel, and upon alleged insufficient notice, in overruling this motion and rendering judgment on the verdict of the jury and in sentencing appellant thereon. Other errors are assigned which, in view of our conclusion upon some of those referred to, need not be discussed.

Appellant's counsel applied to the court for leave to interview Frank and Annie Posick, which leave the court granted upon the condition that counsel for the state be present during the interview. The interview was had under these circumstances, a stenographer in the employ of the state being present to take down the statements made. At the conclusion of the conference appellant's counsel requested the reporter to prepare, at appellant's expense, a transcript of the testimony, at which time counsel for the state remarked that he did not know whether or not he would furnish appellant's counsel with such a copy. No copy was furnished appellant's counsel prior to the trial, and during the trial request was made for one, which request was refused by the prosecuting attorney. On application to the court by appellant's counsel for an order requiring counsel for the state to deliver such copy to appellant the court refused to make such an order, upon which ruling appellant bases one of her claims of error.

It appears that appellant's counsel was afforded an opportunity to talk to Annie Posick in the absence of any third party, but no such opportunity was accorded them in so far as Frank Posick is concerned. It must be remembered that Frank Posick was not charged with any crime. He was detained as a material witness for the state, and, failing to furnish the amount of bail required, was confined in the county jail. In the first instance the witness had been arrested as under suspicion of having committed, or been an accessory to, the murder of Mr. Susan, and from the record before us, assuming that a murder was committed, there was certainly adequate reason for detaining both Frank Posick and appellant pending investigation. Mr. Posick was detained as a witness for the state and testified at the trial as such witness against appellant.

Counsel for respondent argues that as no limitation was placed by the court upon the number of times appellant's counsel could interview Frank Posick, the only restriction being that they could not interview him in the absence of counsel for the state, and that as appellant's counsel sought only one opportunity to interview the witness, and as appellant fails to point out any evidence she could have procured had her counsel been permitted to examine the witness privately, appellant fails to show any prejudice resulting from the order of the court as made.

In this connection we may state in passing that no error was committed by the trial court in refusing to reduce the amount of bail fixed as security for the attendance of Mr. and Mrs. Posick as witnesses. We do not find that the Posicks made any complaint on this point, and as to this matter we find no error in the record of which appellant can complain.

In the case of State v. Storrs, 112 Wash. 675, 192 P. 984 197 P. 17, this court laid down the rule that the matter of allowing counsel for a defendant charged with...