State v. Yourex

• Decision Date: 05 January 1903
• Parties: STATE v. YOUREX.
• Court: Washington Supreme Court

71 P. 203

30 Wash. 611

STATE v. YOUREX.

Supreme Court of Washington

January 5, 1903

Appeal from superior court, Chehalis county; Mason Irwin, Judge.

W. J Yourex was convicted of manslaughter, and appeals. Affirmed.

W. H. Abel and A. M. Abel, for appellant.

J. A Hutcheson, for respondent.

FULLERTON J.

The appellant was informed against for the crime for murder in the first degree, tried upon the charge, and found guilty by the jury of the crime of manslaughter. From the judgment of conviction pronounced upon the verdict, he appeals.

The facts necessary to an understanding of the errors assigned briefly stated, are these: On November 13, 1901, a complaint was filed before one of the justices of the peace for Cosmopolis precinct, Chehalis county, charging the appellant with having committed the statutory misdemeanor of defacing a building not his own. On the filing of this complaint the justice issued a warrant commanding the sheriff or any constable of the county to forthwith apprehend the appellant and bring him before the justice to be dealt with according to law. In the body of the warrant the offense of which the appellant was accused was recited in the following language: 'That on the 6th day of November, 1901, at Canto, in said county, that one W. J. Yourex, then and there being, did then and there willfully and unlawfully deface and tear down and destroy one certain building standing and being on the county road in section number 7, township 15 N., range 9 W., Willamette meridian, known as the 'Warehouse,' and which said building was then and there owned by said W. H. Bowen and divers other persons, and was not the property of the said W. J. Yourex, nor owned by him.' This warrant was placed in the hands of one C. Y. Fenwick, a constable for Cosmopolis precinct, for service, who immediately proceeded to the residence of the appellant, which was at some considerable distance from Cosmopolis, reaching there early in the morning of the 15th of November. While on his way, the constable passed the houses of two of the neighbors of the appellant, informed them of his business, and took them with him to the appellant's house. As to what occurred after the parties reached the house, there is a dispute in the evidence. The officer and the neighbors accompanying him testify that the warrant was read to the appellant, and that he was duly placed under arrest. They say further that the appellant objected to going to Cosmopolis on that day, giving as his reason that he had a contract for carrying the United States mail; that the next day was one of the days when he was required to make a trip, and he feared he could not return in time to perform that duty; and that the officer answered him by saying that his case could hardly be tried that day, and he could doubtless make arrangements to return. The appellant denies that he was placed under arrest then, or at any time, for the charge contained in the warrant, but testifies that he was told by the officer that he was being summoned in a civil action, and that he could go to Cosmopolis on that day, and return in time to carry the mail on the next, and that he went along with the officer with that understanding. The officer and the appellant reached Cosmopolis between 2 and 3 o'clock in the afternoon. They went at once to the justice's office, when the appellant immediately became engaged in a conversation with the justice concerning his case. On the road to Cosmopolis the officer had discovered that the appellant was armed, and, while the justice and the appellant were taking, he left them, and went after one Silas W. Smith, who was then acting as marshal of the town of Cosmopolis. When the officer returned to the justice's office with Smith, they approached the appellant, and the comstable asked him if he was armed, at the same time saying that it was his duty as an officer to take his arms away from him, if he had any. On the constable's making this statement, the appellant immediately arose to his feet from the chair in which he was sitting, drew his revolver, and declared he would not give it up; that the officer had no right to take it; that he was a United States mail carrier, and no one but a United States marshal could take his arms from him. Both the constable and Smith drew their revolvers when the appellant arose. After he had made his statement, they expostulated with him, telling him he was under arrest, and that it was his duty to give up his revolver. The appellant, however, persisted in his refusal, saying finally that he was going home, and at the same time he backed to the office door, and from thence to the middle of the street, keeping his revolver pointed in the direction of the officers, who were following him. On reaching the middle of the street, the appellant attempted to discharge his revolver at one of the officers, but it missed fire, and the next instant all three of the revolvers were discharged. The shooting continued until all of the revolvers were emptied, resulting in the death of Smith, and the serious wounding of the others. It was for killing Smith that the appellant was tried and convicted.

Among the proofs offered to show the official character of Fenwick was a certified copy of his official bond as constable. The certificate thereto was made by the county clerk, and it is objected that the copy was inadmissible as evidence, because the clerk is not, under the statute, the lawful custodian of the official bonds of constables elected or appointed in their respective counties. Formerly the law made the county auditor the legal custodian of bonds filed by constables on their qualification, but by the act of February 13, 1890, it is provided that the official bonds of all county and township officers shall be filed and recorded in the office of the county clerk of their respective counties. Laws 1889-90, pp. 34, 35. The term 'county and township officers' includes constables, and makes the county clerk the legal custodian of their official bonds. No error was committed by the court, therefore, in permitting the certified copy of the bond to be introduced in evidence.

The appellant objected to the introduction in evidence of the warrant of arrest issued on the complaint charging him with a misdemeanor, giving as a reason therefor that the warrant is void upon its face, and insufficient to authorize an officer holding it to make an arrest. It is said, first, that the warrant is insufficient in its recitals, in that it does not give the...