Timmerman v. Territory

• Decision Date: 28 January 1888
• Citation: 17 P. 624,3 Wash.Terr. 445
• Parties: TIMMERMAN v. TERRITORY.
• Court: Washington Supreme Court

17 P. 624

3 Wash.Terr. 445

TIMMERMAN v. TERRITORY.

Supreme Court of Territory of Washington

January 28, 1888

Error to district court, Goldendale county.

Indictment against John Henry Timmerman for the murder of William Sterling. The jury found a verdict of guilty, and defendant sued out writ of error.

Ballard & Coovert, for plaintiff in error.

H. Dustin, Pros. Atty., and Dunbar & Smith, for defendant in error.

JONES C.J.

The defendant was indicted for murder in the first degree. The indictment was in these words "District court for the Fourth judicial district of Washington Territory, holding terms at Goldendale for the county of Klickitat, W. T. The Territory of Washington Plaintiff, vs. Henry Timmerman, Defendant. Henry Timmerman is accused by the grand jury of the territory of Washington for the county of Klickitat, by this indictment, of the crime of murder in the first degree committed as follows: He (said Henry Timmerman) in the said county of Klickitat, on the 3d day of October, 1886, purposely, and of his deliberate and premeditated malice, killed William Sterling, by then and there purposely, and of his deliberate and premeditated malice, shooting and mortally wounding the said William Sterling with a pistol which he (the said Henry Timmerman) then and there held in his hand, and from which mortal wound the said William Sterling instantly died." A plea of not guilty was entered, and, on calling a jury for trial, defendant challenged two jurors for cause. The challenges were overruled, and the defendant accepted. None of the evidence in the case is returned to this court, and therefore there is nothing here by which this court can ascertain whether the ruling complained of is correct or otherwise. For the same reason we are unable to say whether there was error in receiving a copy of a telegram, or whether it was received or not.

The jury returned a verdict in this form: "We, the jury, in the case of The Territory of Washington against John Henry Timmerman, find the defendant guilty,"-and sentence of death was pronounced. This verdict is claimed to be defective in this: that the defendant might have been found guilty of murder in the first or second degree, or of manslaughter, under this indictment and therefore the verdict was uncertain, and the court could not pronounce sentence upon it. If the objection is sound, every motive exists for so declaring. In many states the form of verdict here used has been held bad for the reasons here assigned, but growing out of statutes peculiar to such states; and in others, where there is no statutory form, because of the reason of the matter itself. Our Code (section 1097) provides that, "upon an indictment for an offense consisting of different degrees, the jury may find the defendant not guilty of the degree charged in the indictment, and guilty of any degree inferior thereto." The next section provides that "in all other cases the defendant may be found guilty of any offense the commission of which is necessarily included within that with which he is charged in the indictment." It would seem from these sections that, if the jury found the defendant guilty of an offense of inferior degree to that charged, the verdict must specify that degree, but, if the verdict was intended to be guilty of the degree charged, there would be no necessity of so specifying it. If there is or may be a doubt as to this, under these sections, section 1103 seems to remove any possible room for criticism. That section is in these words: "When the defendant is found guilty, the court shall fix the punishment, and the verdict may be substantially in the following form: 'We, the jury, in the case of The Territory of Washington, Plaintiff, against _____, Defendant, find the defendant guilty."' In this case the jury used this form, inserting the name of defendant in the blank, and one of the jurors signed it as foreman. We have no doubt of the power of the legislature to prescribe the form, and think there is no uncertainty as to the fact thus found. In this case there is no room for doubt left when we take into consideration the fact appearing in the record that the court...