State v. Whitfield

• Decision Date: 28 March 1924
• Docket Number: 18439.
• Citation: 129 Wash. 134,224 P. 559
• Court: Washington Supreme Court
• Parties: STATE v. WHITFIELD.

224 P. 559

129 Wash. 134

STATE v. WHITFIELD.

No. 18439.

Supreme Court of Washington

March 28, 1924

Department 1.

Appeal from Superior Court, Clarke County; Simpson, Judge.

George Edward Whitfield was convicted of murder in the first degree and he appeals.Affirmed.

Tolman J., dissenting in part.

Charles S. Lane, of Camas, W. E. Yates, of Vancouver, and James P. Stapleton, of Portland, Or., for appellant.

Jos. E Hall and Dale McMullen, both of Vancouver, for the State.

MACKINTOSH J.

The appellant was charged with murder in the first degree under this information:

'That he, the said George Edward Whitfield, did on or about the 8th day of March, 1923, in the county of Clarke and state of Washington, then and there being, and while then and there unlawfully engaged in an attempt to commit and in committing, and in withdrawing from the scene of, a rape of Anna Nosko, did then and there, without excuse or justification, unlawfully and feloniously kill and murder said Anna Nosko, in this, to wit, that he, the said George Edward Whitfield, on or about the 8th day of March, 1923, in the county of Clarke and state of Washington, then and there being, and while then and there unlawfully engaged in an attempt to rape, and while unlawfully engaged in raping, and while engaged in withdrawing from the scene of such unlawful rape of Anna Nosko, a girl of the age of 11 years, not the wife of said George Edward Whitfield, did then and there, without excuse of justification, unlawfully and feloniously kill and murder said Anna Nosko by then and there beating, cutting, and mortally wounding said Anna Nosko about her head and neck with some instrument or instruments and in some way or manner to the prosecuting attorney unknown, as a result of which said mortal wounds said Anna Nosko then and there died.'

Upon the trial the jury returned a verdict of murder in the first degree, and from judgment based thereon this appeal is taken.

These errors have been assigned and argued:

1.That on account of the inflamed state of the public mind in Clarke county, where the crime was committed and the trial was had, a change of venue should have been granted.In support of motions for a change of venue, the appellant's attorneys submitted an affidavit of their own, together with copies of newspapers printed and published in Vancouver, the county seat.In answer to this showing the state produced affidavits of 21 citizens, who swore that in their judgment a fair trial could be had.An examination of the newspaper articles does not show that they were of an inflammatory or sensational character, and, in view of the atrocity of the crime with which they dealt, they were unexpectedly restrained and temperate.Under the record, the trial court did not abuse its discretion in denying the motion.Edwards v. State,2 Wash. 291, 26 P. 258;State v. Straub,16 Wash. 111, 47 P. 227;State v. Champoux,33 Wash. 339, 74 P. 557;State v. Hillman,42 Wash. 615, 85 P. 63;State v. Welty,65 Wash. 244, 118 P. 9;State v. Wright,97 Wash. 304, 166 P. 645;State v. Smith,115 Wash. 405, 197 P. 770;State v. Mahoney,120 Wash. 633, 208 P. 37;State v. Burke,124 Wash. 632, 215 P. 31;State v. Lindberg,125 Wash. 51, 215 P. 41.Moreover the voir dire examination of the jurors is not in the record, and the language of State v. Welty, supra, is therefore applicable:

'That the effort [referring to the attempt of newspapers to mould public opinion] failed of accomplishment in this case is to be assumed from the fact that defendant has failed to bring before us the examination of the jurors on their voir dire.Not having done so, we can safely assume nothing unusual was disclosed in such examination, and that there was no great difficulty in obtaining a jury because of the publication of these articles.'

2.Objection is made to the information by demurrer that it did not state facts sufficient to constitute a crime, and that it was duplicitous, and by motions the state was required to show the circumstances surrounding the rape, and to show whether the murder was committed in attempting to rape, in the rape, or in withdrawing from the scene of the rape.Section 2392, Rem.Comp. Stat., which defines murder in the first degree, provides, in subdivision 3 thereof, that the killing of a human being is murder in the first degree when committed----

'without design to effect death, by a person engaged in the commission of, or in an attempt to commit, or in withdrawing from the scene of a * * * rape, * * *' etc.

It is the appellant's position that this information charging him with having committed murder while committing a rape, attempting to commit a rape, or in withdrawing from the scene of a rape, is duplicitous, and that the appellant was not apprised, therefore, of the exact charge against him, so that he might properly defend himself against it, that the allegations are repugnant, and that the information is defective.Subdivision 3 of section 2392 substitutes for the premeditation, deliberation, or malice which otherwise would be necessary to constitute murder in the first degree the incidents surrounding certain felonies, one of which is rape.It is unnecessary to prove that the person who kills another in the commission of rape, or the attempt to commit it, or in withdrawing from the scene of its commission, had any malice, design, or premeditation.The proof of the killing, together with the fact that it was committed in connection with a rape, is sufficient to constitute murder in the first degree.From the very nature of things--and the evidence in this case illustrates the situation as well as any case could--it is often impossible for the state to know at just what instant a killing was committed, whether it was done in the commission of a felony, or in attempting to commit a felony, or while withdrawing from the scene of a felony.The facts here show that there were blows on the head of the child which may have been inflicted before the rape took place or after the rape had been committed, or may have been inflicted while the accused was withdrawing from the scene.The child's throat was also cut, and the same uncertainty exists as to when that mortal wound was inflicted.It is impossible to tell whether the wounds to the head or throat occasioned the death.Under such circumstances, to compel the state to make a choice as to the exact instant that an unwitnessed killing took place is but a technicality to embarrass justice.The real charge against the appellant was the killing; the rape was an incident qualifying the homicide as murder in the first degree.State v. Fillpot,51 Wash. 223, 98 P. 659.He was charged with one crime and only one, and if the killing took place while the appellant was concerned in a rape it is immaterial if it was during the attempt, consummation, or flight.

3.In cross-examination of one of the state's witnesses appellant's counsel asked her if she was not the mother of a child, although she had never been married.Objection by the state was sustained to this question, and this is assigned as error.An examination of the record shows that, even if it was proper to show this condition as affecting the witness' credibility, it was without prejudice, for the reason that immediately thereafter the witness was asked whether she had not accused the appellant of being the father of the child, and she was allowed to answer.

4.A brother of the deceased, aged 9 years, was called as a witness for the state.The appellant objected to his testifying by reason of section 1213, Rem.Comp. Stat. subdivision 2, which provides that:

'The following persons shall not be competent to testify: * * * Children under ten years of age who appear incapable of receiving just impressions of the facts respecting which they are examined, or of relating them truly.'

After the objection was made, the court questioned the witness and determined to its satisfaction that he was not incapable of receiving a just impression of the facts or of relating them truly.An examination of this witness' testimony shows that the court properly exercised his discretion in the matter, and we come to this conclusion without the benefit which the trial court had of the physical presence of the witness, which was an aid to the court in making its determination.State v. Bailey,31 Wash. 89, 71 P. 715;State v. Myrbeg,56 Wash. 384, 105 P. 622;Kalberg v. The Bon Marche,64 Wash. 452, 117 P. 227;State v. Smith,95 Wash. 271, 163 P. 759;andWilkerson v. McGinn,110 Wash. 454, 188 P. 472.

5.All of the witnesses for the state and the appellant were excluded from the courtroom during the trial, but an exception was made of the sheriff of Clarke county, who was allowed to remain.The sheriff was the real prosecuting witness in the proceeding.It is a matter within the discretion of the trial court to exclude certain witnesses and to exempt others from that order.State v Dalton,43 Wash. 278, 86 P. 590.It has long been the practice in this state to allow the prosecuting witness to remain in attendance while all other witnesses in a criminal case have been excluded.No prejudice is shown to have resulted from this order. ...