State v. White

Decision Date14 January 1895
Citation39 P. 160,10 Wash. 611
PartiesSTATE v. WHITE.
CourtWashington Supreme Court

Appeal from superior court, Snohomish county; John C. Denney, Judge.

John White, convicted of murder, appeals. Reversed.

For dissenting opinion, see 41 P. 442.

A. D. Warner, for appellant.

L. C Whitney, Pros. Atty., for the State.


The information charged the appellant and three other persons with the premeditated murder of George Schultz, by shooting. The information was in the usual form, except that it charged four persons with the crime, instead of one, and we hold it sufficient. The fact that the theory of the state was that the four persons charged had conspired together to kill Schultz, and that the evidence established that appellant did not fire the shots which caused his death, can have no effect upon the sufficiency of the pleading. State v. Duncan, 7 Wash. 336, 35 P. 117.

Certain maps were admitted, upon the identification of a witness who appellant claims, was shown to be hostile to him in a marked degree but in this there was no error. The accuracy of the maps was tested in many ways, and appellant has deemed them so slightly material that he has not attached them to the record.

The court admitted the testimony of one Marsh, a confessed opium consumer, who admitted that he was under the influence of opium both at the time of the occurrences to which he testified, and when he was on the witness stand. Our law makes all persons competent witnesses, in all cases, and we know of no sufficient reason why a person who uses opium should be excluded. At the same time, the authorities agree that the testimony of such persons is very unreliable, and juries should be carefully cautioned as to the credence to be given to it. 2 Whart. & S. Med. Jur. § 334; 1 Rice, Ev. p. 625. Caution was given in instruction 33, at the request of appellant, with an immaterial omission.

On the second day of the trial (which occupied many days), and while the first witness for the state was being cross-examined, a rather remarkable incident occurred. The case had proceeded for hours without an objection, and the immediate subject of inquiry was about a small fight which the witness and appellant had had over the main cause of the whole trouble,-a neighborhood road. Counsel for the state made an objection to the relevancy of a question, and the court sustained it, without waiting for the other side to support it: "Rochester (for appellant): I would like to be heard before your honor sustains the objection. Court: That matter has been gone into several times. That is the reason I sustain the objection. Rochester: I would like to have the privilege, when objections are made to questions- Court: I don't always stop to listen to arguments on every objection. Rochester: I except to the court's not hearing me upon the objection. Court: You can have an exception to the question. Rochester: I wish an exception to the court's refusal to hear me on argument. Court: I tell you now I want you to stop this kind of argument. I have given you an exception. Mr. Warner (for appellant): If the court please: Your honor well knows, upon reading the textbooks and authorities of the numbers of murder cases, that many a murder case is reversed- Court: I told you I didn't care to hear any more talk on this matter at all. I have given you an exception here, and, if there has anything gone before this jury, you gentlemen are responsible for it yourselves, and I don't care to hear anything more about it. I don't want it to go before the jury. Warner: If the court will not hear us in this case, we cannot go on. Court: Mr. Clerk, you may enter up a fine against this man,-you may enter up a fine of $50 against this man, and stand committed to jail until the fine is paid. Mr. Sheriff, take charge of this man. Warner: I would like the record to show the reason of the fine. Mr. Clerk, have you a blank check? I will pay the fine. Court: You can proceed with the case." It is difficult to see what all this was about. The case, which was yet in its infancy, had proceeded smoothly enough, the court having sustained fully half the objections made by counsel for the defense. The court's reason for sustaining the objection made by counsel for the state was good enough, under the circumstances, and counsel ought to have been satisfied with it without any argument. The only cause of aggravation which the court had, as against Mr. Rochester, was that he was doing what attorneys often do unnecessarily, viz. insisting upon the court's allowing an exception, when all that an attorney has to do in any case is to take an exception. Evidently, upon the record (and we have recited it all), all that was necessary or proper, in the presence of the jury, was a quiet word of admonition, and the case would have proceeded as before. But the appellant's interest in the matter is not that his attorneys were summarily dealt with, and one of them fined excessively, considering the facts, and ordered into the instant custody of the sheriff. His cause of complaint is that all this book place in the presence of the jury, and with such an exhibition of feeling on the part of the court that the jury, which is an instrument most sensitive to every impression coming from the court, must have reasoned that appellant's counsel had been guilty of some very grave offense in the conduct of his case, to their material depreciation as fair and reputable attorneys. In cases of so great gravity as this, such conduct on the part of the trial court will not do, and when it occurs the least that an accused person can demand is that he be given an opportunity for a hearing of his case before a jury not subjected to such influences.

The theory of the state was that, as the result of a long contest between neighbors over the maintenance of a road through government land settled upon by White and the Robinsons, the four persons accused of the homicide, which included the senior Robinson, one of his sons, and an employé named Livingstone, had conspired on a certain day to waylay and assassinate Schultz and one Smith (who was killed at the same time), who were partisans of those seeking to maintain the road in a certain locality. Nobody witnessed the crime but those who were engaged in it, and, aside from admissions made by the defendants that the younger Robinson and Livingstone had fired the fatal shots, the state's case depended entirely upon circumstantial evidence; the fact of the shooting, the presence of all the defendants, and the condition of the ground being relied upon to establish the confederation of the defendants, and the killing by lying in wait. The shooting took place shortly after noon on a day succeeding a night during which there had been a light fall of snow. Several witnesses testified to having visited the...

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