State v. Vance

• Decision Date: 26 August 1902
• Citation: 29 Wash. 435,70 P. 34
• Court: Washington Supreme Court
• Parties: STATE v. VANCE. [*]

70 P. 34

29 Wash. 435

STATE v. VANCE. ^[*]

Supreme Court of Washington

August 26, 1902

Appeal from superior court, Pierce county; W. H. Snell, Judge.

A. P Vance was convicted of murder, and appeals. Affirmed.

John Leo and J. L. McMurray, for appellant.

Fremont Campbell, Charles O. Bates, and Walter M. Harvey, for the State.

WHITE J.

On the 16th day of September, 1901, an information was filed in the superior court for Pierce county by the prosecuting attorney of that county against the appellant, charging him with the crime of murder in the first degree. On the 17th of September, 1901, the appellant was arraigned, and a motion to quash and a demurrer to the information were filed by Samuel F. McAnally, as attorney for defendant. On the 18th day of September, 1901, the motion was denied, and the demurrer overruled. On the same day the appellant entered a plea of not guilty. On the 12th of October, 1901, a written motion with the affidavit of Samuel F. McAnally attached thereto and referred to in the motion, was made for the continuance of the cause for a reasonable time, suitable for the purposes stated in the affidavit. The affidavit, omitting the formal parts, was as follows: 'Samuel F. McAnally, being first duly sworn, on his oath says: That he is one of the attorneys for the above-named defendant, and up to this time has been the only and sole attorney for said defendant. That the acts alleged to constitute the offense of which the defendant is charged were committed, or alleged to have been committed, thirty-five miles from the city of Tacoma, at the village of Eatonville, which is not accessible by any rapid or convenient mode of travel, and that to thoroughly investigate all necessary facts connected with the defense of the defendant necessarily required a great deal of time and traveling, and for the first twenty days that affiant was engaged as defendant's attorney he was suffering from the effects of a surgical operation in the throat, and was thus prevented from working as effectually as he otherwise could and would have done. That the defendant has been and is a poor man, unable to furnish his attorney with adequate means of transportation and facilities for investigation, and that the time allowed for preparation of this case for trial has been wholly inadequate for the performance of the duties required, and by reason of the shortness of time, and other facts, aforesaid, the defendant has been and is unable to present his defense in this cause on the 14th day of October, 1901, being the time assigned for trial of the same, without the consent of the defendant. That affiant is reliably informed by a witness subpoenaed by the state and by others that there were persons other than are now known to the defendant,--that is, whose identity is unknown to the defendant,--who were at or near the place where the offense is alleged to have been committed at or near the time the offense was alleged to have been committed, and that affiant has made, and continues to make, strenuous endeavors to find said persons, but so far has been unable to do so. Of the foregoing facts affiant informed this court and the attorneys for the plaintiff at the time this cause was noted for trial. That recently, to wit, on the afternoon of the 10th day of this month, the attorneys for plaintiff notified defendant through affiant, his attorney, of their intention to indorse on the information herein the names of two witnesses--J. E. Noel and William Buchannan--concerning whose testimony the defendant is not informed, but that if their testimony is material, the same has been known, or with ordinary diligence might have been known, to the attorneys for plaintiff ever since the preliminary hearing in this cause September 9, 1901, and that it would be an injustice to the defendant to allow the indorsement of said names at this time. That the defendant and his attorneys are not desirous of delaying the trial of this cause any longer than is absolutely necessary for the administration of substantial justice, and that the only delay sought is for the purpose of ascertaining the identity of, and securing the attendance of, all persons as witnesses who have any material information concerning the facts alleged in the information, and that such knowledge or information is not now in the possession of the defendant or his attorneys.' On the same day the court denied said motion, and in the order denying the same recited: 'And the court having read the affidavit of Samuel F. McAnally in support of said motion. * * * doth overrule and deny said motion.' The cause came on for trial on the 14th day of October, 1901, and the trial continued from day to day, Sundays excepted, until the 24th day of October, 1901, when the jury returned a verdict as follows: 'We, the jury in the case of the State of Washington, plaintiff vs. A. P. Vance, defendant, find the defendant guilty of murder in the first degree. L. A. Chamberlain, Foreman,' which verdict was received by the court and entered. Immediately after the reception of the verdict, and before being discharged, the jury handed the following to the court: 'We, the jurors, do recommend the clemency of the court in the case of State of Washington vs. A. P. Vance.' This was signed by all the jurors. The jury was then discharged. The respondent moves for an order to strike from the transcript the affidavit of Samuel F. McAnally, about recited, for the reason that said affidavit has not been preserved or made a part of the record in the cause by any bill of exception or statement of facts. The affidavit is not referred to in the judge's certificate to the statement of facts, and is not made a part of the record by any bill of exception. The affidavit and motion seem to have been filed as one paper. It appears from the order of the court made upon the motion and the motion itself that the affidavit was considered by the court in passing upon the motion. From this it can be readily determined that the affidavit formed part of the proceedings in the court below, and that the attention of the trial court was directed to it. The affidavit was an integral and inseparable part of the motion, attached thereto, constituting a part thereof, and setting forth, in verified form, the grounds of the motion, and the order of the court expressly recites that the court 'had read the same in support of the motion.' The order of the court is a part of the record. It furnishes conclusive evidence that the affidavit was presented to and considered by the trial court in passing on the motion for a continuance. In passing upon a similar question in Clay v. Selah Valley Irr. Co., 14 Wash. 543, 45 P. 141, we said: 'There is nothing to show that they [affidavits] were all presented or read to the court below on the hearing of the motion.' For that reason we said that, 'in order to entitle them to a consideration here, the fact that they were so presented should have been certified to by the court in some manner.' The journal entry of the order is a part of the proceedings of the court, and the court has full control of all such entries. Section 4722, 2 Ballinger's Ann. Codes & St. Where such a journal entry recites as a fact that in passing upon the motion the court read the affidavits in support of the motion, we think that fact sufficiently appears, and in such a case it is not necessary that such affidavits be certified in a bill of exceptions or statement of facts. The cases cited by respondent of Clay v. Selah Valley Irr. Co., 14 Wash. 543, 45 P. 141; Winsor v. McLachlan, 12 Wash. 154, 40 P. 727; State v. Howard, 15 Wash. 425, 46 P. 650; State v. Anderson, 20 Wash. 193, 55 P. 39; Armstrong v. Van De Vanter, 21 Wash. 682, 59 P. 510,--are distinguishable, in the particular indicated, from the present case. The motion to strike the affidavit for a continuance is denied.

The respondent also moves for the same reasons to strike from the transcript the following papers and records and journal entries: The challenge to panel of jurors and the verification thereof by Samuel F. McAnally; the record of the meeting of the Pierce county bar and certificate thereto, to the effect that on June 28, 1901, the bar of Pierce county met, selected and nominated certain persons, whose names were to be submitted to the judges of the superior court of Pierce county, from which names jury commissioners were to be selected, under the act providing for and regulating the selection of jurors (Sess. Laws 1901, p. 204); the journal entry of the orders of the superior court of Pierce county appointing jury commissioners under said act; the journal entry of the superior court of Pierce county showing the appearance of the jury commissioners, and their oath of office ad administered to them by one of the judges of said court; the journal entry of the court containing the list of jurors chosen by the jury commissioners; the certificate of the jury commissioners and their certification thereto of the selection of the names of qualified jurors, and the deposit of such names in the jury box; the journal entries of the order of the court departments 1 and 2, of date of September 14, 1901, ordering a panel of 40 petit jurors in each department for attendance upon the court, to be drawn from the jury box, and the issuance of a venire to the sheriff to summons such jurors; the list of the petit jurors drawn under the order of September 14, 1901, and certificate of the clerk of the court to the same; and summons to the petit jurors drawn under said order, and return of the sheriff to the same.

The challenge to the panel, omitting formal parts, is as follows 'Comes now the abovenamed defendant, A. P. Vance, presents these his exceptions to, and challenges, the...