White v. Territory

• Decision Date: 25 January 1888
• Citation: 19 P. 37,3 Wash.Terr. 397
• Parties: WHITE v. TERRITORY.
• Court: Washington Supreme Court

19 P. 37

3 Wash.Terr. 397

WHITE v. TERRITORY.

Supreme Court of Territory of Washington

January 25, 1888

Error to Second district court.

Indictment of William W. White for murder. Defendant brings error from a judgment of conviction of murder in the second degree.

JONES, C.J.

The plaintiff in error was indicted for murder in the first degree, committed in the county of Pierce July 17, 1885, upon the person of one James McMillan. He was convicted of murder in the second degree, and sentenced to the penitentiary. The facts gleaned from the record, and about which there seems to be no real dispute are these: In January, 1878, the defendants, William M White, bought the Connell and Williamson donation claims, about 640 acres, and went into possession thereof. During the month he executed and delivered a mortgage to James G. Williams on the above property for $2,400, payable in one year. In course of time James McMillan, the deceased, became the owner of the mortgage. The mortgage debt was not paid, and the deceased, at defendant's request, made several extensions of time for payment. Finally, the debt not having been paid, the deceased brought an action to foreclose, in which action defendant appeared. A decree was rendered foreclosing the mortgage, and directing a sale of the mortgaged premises. The sale was postponed for 10 days to enable the defendant to raise the money to pay the debt. It was not paid, and the sale took place, deceased bidding in the property. The sale was confirmed. No redemption was made, and the sheriff executed a deed to the deceased. After the deed had been made, the deceased offered to convey the property to defendant if the latter had the money by a certain day. About this time deceased's creditors were becoming clamorous for money, and deceased transferred the property to his father, to whom he was indebted, and the creditors had attached the property before the day arrived on which defendant was to pay for the land. On the day appointed, White reported that he had the money, but owing to the attachments nothing could be done. Defendant's attorneys then endeavored to procure a settlement with the creditors of McMillan, but no arrangement could be made. The agreement made by McMillan was a verbal one, and without consideration. Notwithstanding this, defendant's attorneys brought suit against McMillan for a specific performance. A demurrer was interposed, sustained, and, plaintiff failing to amend, judgment was rendered against him. Defendant was then advised by his attorneys to enter the Connell donation claim in his own name, as it was still public land. Connell had been killed by the Indians before living four years on the land, and so no proof had ever been made by him. A patent had issued to the Williamson place before the sale. Although the defendant had mortgaged the property, he was still advised that the mortgage was invalid, and consequently all proceedings based on it were void, and that he should homestead the Connell place, and apply to purchase the Williamson place. Defendant was therefore advised to maintain possession of the Williamson place, and was in the actual occupancy of it from 1878 until after the homicide. The deceased, to whom his father had leased the property, then had a notice served on the defendant to quit the premises. By this time the relations between the deceased and the defendant had become strained, and each one had made threats as to what he would do in certain events. McMillan had threatened to have the hay on the Williamson place, or blood. These threats had been communicated to the defendant. The defendant had threatened that some one would be hurt if McMillan made any attempt to interfere with the land. The boundary line on the west side of the Williamson place continued on south, and formed the western boundary line of the Connell place. The eastern boundary line of the Williamson place intersected the northern line of the Connell place, the Connell place being a parallelogram and the Williamson place a square. There was a break in the fence of the Williamson place. The defendant was living on the Connell place. His house was there. James McMillan, on the day he was killed, went upon said Williamson donation claim to cut the crop of hay or grass raised thereon by White, and did cut a part thereof. White, learning from one of his sons that McMillan, or some one else, was cutting hay on the place, put a pistol in his pocket and went to the place where McMillan was cutting the hay. Arriving there, he found McMillan in a wagon, and demanded of him whether he had "sheriff's papers," or any authority, for coming there to cut the hay. McMillan, answering, took up a gun which he had by him in the wagon, and, pointing it at White, and calling White's attention to it, said, "This is my authority." White replied that that was not sufficient authority, and he should cut no hay there till he had better authority, and ordered him to leave the place at once, saying, "You put this in law, and now let the law settle it." Some talk followed, McMillan keeping the gun pointed towards White, and White endeavored to elude it. White, noticing the growing excitement of McMillan, and that McMillan was raising the gun, said, "Mac, you are excited; don't shoot." Both fired quickly, McMillan with the gun and White with his pistol. The testimony is conflicting as to which fired first. After the exchange of shots, White rushed in upon McMillan and seized his gun, meanwhile with one hand firing his own pistol. Both men were wounded. McMillan's wound proved fatal. After sending for a physician, for camphor, water, etc., and exerting himself to save McMillan's life, White came to Tacoma and surrendered himself to the sheriff. The defendant assigns a large number of errors, and they are, with one or two exceptions, insisted upon, and have been argued with signal ability by the attorneys upon both sides; but the disposition we make of the case will not require an examination of many of them.

It appears that one Miss Maggie Farr was, without challenge or objection, allowed to sit as one of the jurors by whom the defendant was tried. This court has heretofore...