State v. Washing

• Decision Date: 30 December 1904
• Citation: 36 Wash. 485,78 P. 1019
• Parties: STATE v. WASHING.
• Court: Washington Supreme Court

78 P. 1019

36 Wash. 485

STATE v. WASHING.

Supreme Court of Washington

December 30, 1904

Appeal from Superior Court, Klickitat County; A. L. Miller, Judge.

Johnny Washing was convicted of horse stealing, and appeals. Affirmed.

H. Dustin, for appellant.

E. C Ward and W. B. Presby, for the State.

MOUNT J.

Appellant was convicted of the crime of horse stealing, under the provisions of section 7113, 2 Ballinger's Ann. Codes &amp St. Two principal errors are alleged on this appeal, viz (1) that the trial court erred in admitting in evidence certain statements of the appellant at the preliminary examination before the committing magistrate, and (2) that the court erred in refusing to instruct the jury that the horse stolen was of some value. The other errors alleged depend upon the two stated.

The appellant is an Indian, and speaks the English language in a broken manner. He, and another Indian by the name of Tumwater, were first charged jointly with the crime. Both were arrested and brought before a justice of the peace for a preliminary examination, and, being arraigned by the justice who was sitting as a committing magistrate, the following proceedings were had, as shown by the record: 'The magistrate, addressing appellant, said, 'You are charged by this complaint with stealing and driving away a horse of M. P. Furhman. Now, what have you to say as to that?' The defendant not answering this question readily, the said justice of the peace said to him, 'Did you steal this colt?' (describing it to him). The defendant answered, 'I no steal him; I brand him.' And, being further questioned by the said justice of the peace, said he did not know whose colt it was, but thought it belonged to a white man a long way off; said white man branded 'slick ears,' and he branded this colt; that the Indian Tumwater had nothing to do with it; that he first put Tumwater's brand on the colt, and then let it run about two weeks, and then put his own brand on it; that he kept the colt in a field for a time, and then turned it out on the range. Being questioned as to whether he drove the colt away, the defendant said that he did not drive the colt away; that the colt followed him from Harrison Ridge in Klickitat county to the reservation.' After the appellant had given this testimony, his codefendant Tumwater was discharged, and appellant was bound over to appear for trial in the superior court of Kittitas county. At the preliminary hearing the appellant was not attended by counsel, and was not informed by the magistrate as to his right to answer or refuse to answer questions propounded to him, or that such answers or statements might be used against him on the trial in the superior court. When the trial took place in the superior court the prosecution was allowed to prove, by the magistrate and other witnesses, the statement above set out. This is alleged as error.

Our statute, at section 6942, 2 Ballinger's Ann. Codes & St provides that: 'The confession of a defendant made under inducement, with all the circumstances, may be given as evidence against him, except when made under the influence of fear produced by threats; but a confession made under inducement is not sufficient to warrant a conviction without corroborating testimony.' The Constitution provides at section 9 of article 1, that: 'No person shall be compelled in any criminal case to give evidence against himself.' There was corroborating evidence in the case to the effect that, upon the day the horse was stolen, the defendant and other Indians passed the place where the horse was kept; that shortly thereafter the horse was missed; that the horse was found in appellant's possession on the reservation some time thereafter; and that appellant claimed to own the horse. So that the question now is, were the statements of the appellant before the committing magistrate made voluntarily? No evidence was offered by the appellant at the trial. He insists that the circumstances surrounding the preliminary examination, as shown by the prosecution, are sufficient to show that the statements were made involuntarily, and therefore should have been excluded. There is nothing in the record before us tending to show that the statement of the appellant was involuntary, except the mere fact that the appellant was before the magistrate upon preliminary hearing, and was asked the question, 'Did you steal this colt?' Appellant was not required by the statute to plead to the charge in this preliminary examination, but it was his privilege to confess the charge if he desired to do so. Evidently, when the magistrate asked the question, 'Did you steal this colt?' he desired a direct answer--'Yes' or 'No.' Appellant answered, 'I no steal him; I brand him.' The latter part of this answer was not responsive to the question asked, and, no doubt, led to the balance of the statement. The record does not contain the questions subsequently asked by the magistrate, but does contain the substance of the statement of the appellant. If the appellant had been informed of his rights to refuse to answer questions tending to criminate him, or if he was aware of those rights, it would be manifest that all the statements made subsequent to the answer, 'I no steal him,' were voluntary. In the case of Wilson v. United States, 162 U.S. 163, 16 S.Ct. 895, 40 L.Ed. 1090, a case in principle the same as the one before us, the Supreme Court of the United States, speaking to this question, say, at page 623, 162 U.S., page 899, 20 Sup. Ct., 40 L.Ed. 1090: 'In short, the test of admissibility is that the confession is made freely, voluntarily, and without compulsion or inducement of any sort. The same rule...