State v. Swenson, 36248

Citation382 P.2d 614,62 Wn.2d 259
Decision Date06 June 1963
Docket NumberNo. 36248,36248
PartiesThe STATE of Washington, Respondent, v. Thelma Ann SWENSON, Appellant.
CourtUnited States State Supreme Court of Washington

Walthew, Warner & Keefe, John F. Walthew, Seattle, for appellant.

Charles O. Carroll, Pros. Atty., Frank L. Sullivan, Deputy Pros. Atty., Seattle, for respondent.

HALE, Judge.

Frederick Arthur Ferguson 1 murdered Mary Campbell. He choked her, beat her in the head with an iron pipe, and then shot her through the head with malice afore-thought. He said that Thelma Swenson put him up to it. Virginia Ferguson, Arthur's wife, said so too.

Evidence showed that Mary Campbell, mother of six children, was a fine woman, constantly engaged in good work for her church, and was respected and admired by the officials and members of her church organizations. She had befriended Thelma Swenson, employed her as a baby sitter, counseled her in her marital problems, had Thelma and her children in her home for Thanksgiving dinner, and had given her $50 for toys for the children's Christmas. The record shows that Mary Campbell earned nothing but the respect and affection of all who knew her. But for the testimony of Arthur and Virginia Ferguson and perhaps a few rather vague purported admissions reconstructed by police officers, no motive was shown in Thelma Swenson for the killing, no reason for Thelma Swenson to wish Mary Campbell dead.

Since considerable testimony concerned the comings and goings of the principals of the case in connection with their church activities, we find it necessary to point out that all of the principals were members of the Kent Ward of the Church of Jesus Christ of Latter Day Saints. Mary Campbell was a church leader and held numerous posts of importance. Thelma Swenson was also active in the work of the church and attended several meetings of church groups every week. Virginia and Arthur Ferguson likewise were members and Virginia often attended church-directed meetings during the week. All of this activity among the women required repeated trips to and from their respective homes, telephone calls among themselves, frequent arrangements for baby sitters, transportation, meetings, and all of the other activities so essential to the conduct of an active congregation.

Without the testimony of Arthur Ferguson, who confessed fully, and that of his wife, Virginia, the record of trial shows no motive or purpose in Arthur Ferguson in committing this brutal crime except the motives of burglary and robbery. While he knew Mary Campbell as an active leader in their church, she did not know him. He had no reason to dislike his victim; nothing that Mary Campbell had ever done in the service of her church could be said to have induced in Arthur Ferguson or his wife any feelings of hatred or even ill will toward the deceased. Carve out the testimony of Virginia and Arthur Ferguson--the former of whom we shall later see was implicated to a degree with knowledge of the terrible thing about to happen--and you have the picture of a man of monstrously evil purpose, caught in the commision of a burglary and committing murder to seal the lips of his victim, followed by his flight and numerous steps taken to hide his identity. Believe the testimony of Virginia and Arthur Ferguson and we see the picture of Arthur--docile, dependent and suggestible--driven to murder by the powerful, overwhelming will of Thelma Swenson, for Arthur and Virginia Ferguson both said that Thelma Swenson made known to them, on the night when the murder was first talked over, her love for Curtis Campbell, husband of the murdered woman, and her corresponding dislike of Mary.

In the interests of clarity, we must again point out that, without the testimony of Arthur and Virginia Ferguson, there is virtually no proof of the guilt of Thelma Swenson. Everything else in the case is consistent with her innocence. Believe the evidence of Arthur and Virginia Ferguson, all of the actions of the parties before and after the murder, their comings and goings, and their trips to and from the church activities and elsewhere, and strong corroboration is found that Thelma Swenson secretly harbored designs of evil purpose toward her friend and benefactor, Mary Campbell. Disbelieve the testimony of Arthur and Virginia Ferguson and all of the corroborating evidence is consistent with attitudes of warmth and friendship and good will between Thelma Swenson and her kindly friend, Mary Campbell.

Arthur Ferguson and Thelma Swenson were both charged with murder in the first degree, Arthur as the actual perpetrator and Thelma as a principal who planned, procured, and commanded him to commit the crime. Ferguson pleaded not guilty by reason of mental irresponsibility, but was found guilty and sentenced to life imprisonment. He does not appeal. Thelma Swenson was convicted of murder in the first degree, sentenced to life imprisonment, and brings this appeal.

Appellant assigns error to several incidents and rulings arising out of and connected with the cross-examination of Virginia Ferguson, and to the admission of evidence in rebuttal concerning her reputation in church. The other assignments of error are not well taken and will not be discussed.

In assessing whether appellant's rights to cross-examination were impaired or infringed, because of the emotional collapse of the witness on several occasions and the consequent interruption of the testimony, together with other occurrences and incidents, we must first consider the importance of the witness within the fabric of the trial itself. For example, one could hardly claim error in unduly respricting or impairing cross-examination where the testimony involved was purely formal or cumulative or related to matters of minor consequence adequately covered elsewhere under the full exercise of the right to cross-examine. Concerning the matters at issue here covered during the cross-examination and to which error is assigned, it should be known that the testimony of Virginia Ferguson and that of her husband were identical with respect to those matters and facts at which both were present. Yet, as to Arthur Ferguson, the appellant was protected by legal and logical inferences in two regards:

(1) As a confessed murderer, fully admitting a terrible crime, his testimony, insofar as it purported to involve an asserted accomplice, came from a polluted source.

(2) The involvement of an accomplice by him tended to bolster his defense of mental irresponsibility at the murder by showing no motive of gain or revenge or hatred but simply obedience to the will of another.

However, the law afforded no such protection to the appellant from the testimony of Virginia Ferguson, for she (Virginia Ferguson) was never charged with any implication in the crime and, as far as the jury was concerned, voluntarily appeared as a witness on behalf of the state with the consent of her husband to testify, both against him and against appellant.

So that the full effect of the evidence may be understood and to enable an understanding of the issues raised by the claim of error, we feel it necessary to set forth certain parts of the evidence.

Here are excepts from the confession of Arthur Ferguson which are substantially the same in content as was his oral testimony given at the trial:

'* * * I wandered around the lower house and found 2 silver dollars in a blue jewel box in the kitchen powder room. I took off my blue raincoat and laid it on the floor in the bathroom (next to the powder room).

'About 11:30 A.M. I went upstairs and pulled articles of clothing out of the dressers in the bedroom and the hall closet. I went into the study and threw things on the floor from the desk and desk drawers. I also took two boxes of .22 cal. ammunition, one box had nine shells missing. I put them in my pocket.

'Just before I went back upstairs, I put the leather holster in between the crack of the sectional furniture and put the gun in my right hip pocket.

'I went downstairs so I could watch for Mary Campbell when she arrived as I wanted to be in the powder room when she came in.

'I was in the combination bathroom and powder room just off the kitchen when I saw the Campbell's station wagon drive in. I stood in the powder room and a lady with a bady walked in and past the powder room door into the dining room and laid the bady on the small bed. At this time the pipe was in my right hand and the gun in my right hip pocket.

'She came out and instead of going to the pantry she came towards the powder room door and saw me. She screamed and I grabbed her with my left hand knocking her down and I put one knee on her stomack and one knee across her neck and jaw. She was still screaming so I raised my right arm and hand which held the pipe and told her, 'just stop screaming'. She nodded her head 'yes' and I helped her up.

'She asked me what I was doing and I told her I needed some money. She said she didn't have much money and went into the dining room where her purse was lying on the table. She took out her wallet and removed three $1. dollar bills and some change. She laid them down on the table. She showed me some credit cards and her driver's license where I saw the name Mary Campbell. I knew for sure now that this was Mary Campbell because I had never seen but a glimpse of her before.

'The baby started to cry and I told her to take care of it. She removed her coat and laid it across the foot of the small bed the bady was lying on. She put on a clean diaper and went to the kitchen and fixed a bottle. I followed her into the kitchen. She went and gave the baby the bottle.

'She then offered to fix me a hamburger or something to eat while we talked this over. I told her that I wasn't hungry. She went to the refrigerator and removed some hamburger which she placed on the kitchen table and unwrapped. She asked if a glass of milk would be OK and I said, 'Yes'. She got two glasses and placed...

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