State v. Mayo , 42 Wash. 540 ( 1906 )

Fullerton, J.

— The appellant was informed against in the superior court of Spokane county for the crime of murder in the first degree, convicted of murder in the second degree, and sentenced to a term in the penitentiary. From the judgment of conviction he appeals.

He first contends that he' was denied substantial rights given him by statute by the manner in which the jury was impaneled, and a number of his assignments of error are based on rulings mad© by the court with reference thereto. These assignments, as they embrace but a common question, can best be considered together. The code (Bal. Code, § 6879) provides that any person indicted or informed against for a capital crime “shall, on demand upon the clerk by himself or counsel, have a list of the petit jurors returned delivered to him at least twenty-four hours before trial.” Pursuant to this statute, some three days before the time set for the trial of his case, the appellant served upon the clerk a written demand for the list of jurors returned, and then in attendance upon the court. The clerk, in compliance therewith, certified and served upon him a list of all those serving on the regular panel, some fifty-three in number; also; a list of thirty-six more whom the court had ordered drawn from the jury list and directed to he summoned by special venire returnable on the morning fixed for the trial.

The superior court of Spokane county consists of three departments, all three of which were engaged in trying causes by jury at the time the appellant’s ease was called for trial. On the call of his case, some twenty-four of the jurors on the regular panel did not report for dirty in the department in which the appellant was tried, being engaged in other departments, and the court, over his objection, ordered the trial to ¡proceed without requiring them to be brought in; and also over objection directed that those summoned on the special venire, and who had reported for the first time that morning, be listed with the regular jurors. The impaneling of the jury was then commenced, and was proceeded with until the afternoon of the next day, when the judge presiding discovered that the jury could not be completed from the jurors then in attendance upon his department. He thereupon ordered twenty-four more names drawn from the jury list, and a special venire, returnable forthwith, issued for the jurors whose names were so drawn. Of these the sheriff summoned six, and their names were written on ballots; and placed in. the clerk’s box, over the objection of the appellant. A juror who had been excused from attendance upon the court until that time also returned, and his name, over' objection, was placed in the box. From this list, together with twelve of the regular panel, who had been brought ini from another department, the jury before whom the appellant was tried was finally completed.

It is the appellant’s contention that the statute above cited confers on a defendant accused of a capital crime, the- right, not only to have the list of jurors returned and in attendance upon the court served uponi him twenty-four hours before his case is set for trial, but the right to have the jury before which he is tried selected from the list so served upon him; or, at least, to have that list exhausted in an effort to secure a jury before additional jurors are added to the list. The statute in question was enacted before Washington, was admitted into the Union as a state, and at a time when the court system and the method of drawing and summoning jurors differed widely from the present court system, and the present method of drawing and summoning them. At that time we had a district court, which held terms at stated intervals fixed by law. Jurors were drawn in advance of these terms to report at the commencement thereof. If a sufficient number did not report to form a panel of the required number, the sheriff summoned from the by-standers, or the body of the county, a sufficient number of persons to make up the number. From this panel the trial juries required in the cases pending before the court were drawn. But since statehood, the changes from the old system have been radical, not only in the method of summoning trial jurors, but in the court system itself. How there is in each county a superior court, which has no terms, and is open for business at all times except, on non-judicial days. In some counties the court is composed of more than one department, for each of which there is a separate judge. These several departments have equal powers, and all may engage in trials by jury at the same time. Each department selects its trial jury from the same general panel. These panels are drawn from lists prepared by tbe jury commissioners. On tbe second Saturday of each month, the court orders the commissioners to draw from the jury list the names of such number of persons as be thinks will be required for jury service during tbe ensuing month, and a venire is issued for the persons whose names are so drawn. The court is empowered, also, to order drawn and summoned by special venire, returnable at such time as it may direct, any additional number that the judge may think necessary from which to select a jury in any particular case. ISTor does a single exercise of this power exhaust it. It may be resorted to until enough qualified jurors are so drawn. Moreover, this is the only way an exhausted panel may he now refilled in counties of the class to which Spokane belongs. It is no longer permissible to select from the by-standers, or issue an open venire to the sheriff. Whenever the general panel is exhausted, and additional jurors are required to complete a trial jury, they must be drawn from tbe jury list and a special venire issued for them, while under the old practice they were summoned from the by-standers by the sheriff.

.From the foregoing, it is apparent that the section of the statute relied upon by the appellant, while harmonious and consistent with the statutes and general practice in vogue at the time it was enacted, has been rendered practically obsolete by the later statutes 'and practice. While a person charged with a capital offense may still demand, and may still have, a list of juros in service upon the court at the time his case is called for trial served upon him, yet it cannot be held that he has the right to have the jury which is to try his case selected exclusively from that list. Such a rule would make it impossible to> try in one county two persons accused of capital crimes at the same time, no matter how many departments of the court there might be in that county. In fact, the rule would subordinate the business of the entire court to the demands of the particular case, and such we cannot hold to be the intention of the legislature. The later statutes, in so far as they conflict with the earlier one; must he held to have, superseded it; and consequently, we must hold that if it ever was the rule that a person charged with a capital crime had the right to have the jury before which he was to. he tried selected from the panel in attendance upon the court at the time his case was. called, the right has been taken away by the later statutes.

The information charged the appellant with having killed and murdered one William Crane by shooting him with a revolver. The state offered, and the court admitted in evidence, statements made by Crane after he had been wounded, and just prior to his death, concerning the circumstances of the shooting. These were admitted as dying declarations, and it is urged by the appellant that the court erred in so doing; first, because it was not made to appear that the declarant realized at the time they were made that he was about to die, or must die, from the injuries he received; and second, because the description given of the person who did the shooting does not identify that person as, being the defendant. As to, the first objection, the evidence shows that the declarant had been informed by the doctor in attendance upon him that he was about to die; and that he stated that he realized it. This was sufficient to comply with the rule. State v. Baldwin, 15 Wash. 15, 45 Pac. 650.

The second objection is equally without merit. The admissibility of a dying, declaration does not depend on its completeness. That it adds a link in the drain of evidence is all that is necessary. The declaration in this case did at least add a link to the chain of the evidence against the appellant. It described tire circumstances under which the crime was committed, and made it .ppssible to, identify the- person who committed the crime.

The appellant offered evidence tending to show that the deceased had made other statements, after receiving the wound from which he died, inconsistent with those contained in his dying declaration. The court at first refused to> admit the statements at all, but afterwards allowed the appellant to introduce them after the manner of impeaching evidence; that is to say, by permitting the appellant to- ask the witness if the injured person did not, at a certain time and place, say so-and-so; concerning the manner in which he received the wound, instead of permitting the witness to- be asked directly what the injured person said to- him concerning that matter. That the dying declaration may be impeached by showing that the person making them made other* statements inconsistent therewith is held by the great weight of authority. People v. Lawrence, 21 Cal. 368; State v. Blackburn, 80 N. C. 474; McPherson v. State, 9 Yerg. 279; Hurd v. People, 25 Mich. 405; Battle v. State, 74 Ga. 101; Felder v. State, 23 Tex. App. 477, 59 Am. Rep. 777; Morelock v. State, 90 Tenn. 528, 18 S. W. 258; Green v. State, 154 Ind. 655, 57 N. E. 637; Carver v. United States, 164 U. S. 694, 17 Sup. Ct. 228, 41 L. Ed. 602. The only cases to the contrary cited to us are, Wroe v. State, 20 Ohio St. 460, and State v. Taylor, 56 S. C. 360, 34 S. E. 939.

It will be observed on examination, however*, that none of these cases touch the precise point made here. While they maintain or dispute the doctrine that a dying declaration may be impeached, the method of impeaching it is not touched upon. Treating the question as one of first impression we can see no reason for the restriction imposed by the court. In those jurisdictions which adhere most strictly to- the rule that the inquiry made of the impeaching witness must embody the substance of the foundation question, and must be so framed as to admit of an affirmative or a negative answer*, do so on the ground that otherwise hearsay evidence-, not strictly contradictory, might be introduced to the injury of the parties and in violation of legal rules. But no- such reason can have force in a case of this kind. Here there is no preliminary or foundation question; nor, from the nature of things, can there be any such question, and necessarily the impeaching evidence mnst be brought in in the form of original evidence¹. The state, moreover, cannot be prejudiced by permitting the general question to he asked. If the evidence supports the dying declaration, the state’s case is that much strengthened; on the other hand, if they are contradictory, the defendant is entitled to* them under the general rule above cited. But perhaps the better reason for adopting the rule contended for is that the jury are more apt to get a correct understanding of the supposed contradictory statements when they are detailed by the witness who heard them than they are when recited in. the form of a question put by counsel with its necessary wealth of inuendo and other explanatory matter. To arrive at the truth is the aim of all evidence, and the courts should follow the methods which best conserve that end. It seems to us that, in cases of this kind, that method would be to direct tbe attention of the witness ¹ to the matter desired to be introduced in evidence, and let bim state in his own words what the deceased said concerning it.

At the conclusion of the evidence; the appellant requested, the court to charge the jury in writing. The court did not! comply therewith, and the appellant excepted thereto, and assigns the action of the court as error. The statute (Laws 1903, p>. 120, subd. 4) provides that,

“When the evidence is concluded, either party may request the judge to charge the jury in writing, in which event no other charge or instruction shall be given, except the same be contained in the said written charge; . . . Provided . . . That whenever in the trial of any canse, a stenographic report of the evidence and the charge and instructions of the court is taken, the taking of such charge or instructions by the stenographic reporter, shall be considered as a charge or instruction in writing within the meaning of this section.”

While the record is silent on the question, it is said by counsel that there were two stenographers present taking a stenographic report of the evidence; one employed on behalf of the prosecuting attorney, and the other by tbe defendant. These presumably took a stenographic report of the court’s charge as it was delivered, and the question is whether their presence relieved the court from this obligation to charge the jury in writing, when so requested. It isi the appellant’s contention that the stenographer present to> relieve the court of this obligation must be an official stenographer, or at least one under the direction and control of the court, so that a copy of the charge could-he had if application to the court should he made therefor. It seems toi us that this objection is well taken. If the court may refuse to charge in writing when requested merely because one of the parties has employed a private stenographer to- report the case on his behalf, then it may do so if it can discover that there is any person reporting the easei, no matter for what purpose or on whose behalf. We think the stenographer referred to by the statute must be one who is under the direction of the court, and who can be required to furnish a copy of the instructions when a copy is requested. This is mot true of a stenographer employed by one of the parties to the- suit to report the case on his own behalf. Such a stenographer is not under the control of the court-, nor is he under any obligation, nor can he he required, to furnish a copy of any part of the proceedings, either to the court or the opposing party. His duties are measured by his contract relations with the party who employed him. To say, therefore, merely because there is a stenographer present reporting the case, that the court need not charge in writing, when requested, is to practically annul the statute requiring the court, on request, to charge the jury in writing.

The court, against the objection, and over thei excerption, of the appellant, limited the time of argument to the jury to one and one-half hours on each side. It is contended here that this was such a manifest abuse of discretion on the part of the court as to- entitle the appellant to a new trial. It seems to us that this contention is also well taken. To appear and defend in person and by counsel is a right guaranteed to one accused of crime by the constitution of this state, as well as by the Pederal constitution, and it is not toi be denied that a part of that right is the right h> address the jury on the questions of fact the issues present for determination. This right, too; has always been regarded as one of the greatest value, not only to the accused, but to the due administration of justice, and any limitation of it which has seemed to deprive the accused of a full and fair hearing has generally been held error entitling the defendant to a new trial. Williams v. State, 60 Ga. 367, 27 Am. Rep. 412; Jones v. Commonwealth, 87 Va. 63, 12 S. E. 226; White v. People, 90 Ill. 117, 32 Am. Rep. 12; People v. Green, 99 Cal. 564, 34 Pac. 231; People v. Kennan, 13 Cal. 581; Dille v. State, 34 Ohio St. 617, 32 Am. Rep. 395; Hunt v. State, 49 Ga. 255, 15 Am. Rep. 677; State v. Rogoway (Ore.), 81 Pac. 234; State v. Tighe, 27 Mont. 327, 71 Pac. 3.

In this case the trial consumed something more than four days. Over twenty witnesses were examined, and the evidence reported to this court makes a typewritten volume of nearly 500 pages. The case was a capital one. The killing was done by one of a foreign race, against which the preliminary examination of the jurors disclosed there existed in the public mind a considerable prejudice. Under these circumstances, we are clear that the limitation of one and onedialf hours was too restrictive to allow a full and fair discussion of the facts of the case, and, hence; was a violation of the defendant’s constitutional rights.

The appellant specially requested the court to instruct the jury on the law relating to the presumption of innocence. This the court refused to do; either in the language submitted with the request, or in its own language. This was error. The accused is entitled in every instance to an instruction on the presumption of his innocence. The court need not, of courser, give the instruction in the language of the request unless it so desires; hut when requested to instruct as to the presumption of innocence, it should comply therewith in some form, such as will correctly inform the jury as to the law pertaining thereto. Coffin v. United States, 156 U. S. 432, 15 Sup. Ct. 394, 39 L. Ed. 481; 12 Cyc. 621, and cases cited.

The appellant also requested the following instruction:

“Dying declarations are admissible from the necessities of the case, but they should be received with caution, for the reason that the declarant has not been administered an oath, and an opportunity for cross-examination has not been afforded the defendant, and that the declarant might be influenced against the defendant. And for the further reason that the physical condition of the declarant might render the statement more or less unreliable. Circumstances surrounding the declaration should be weighed the same as those surrounding other evidence.”

This, or an instruction of similar import, should have been given. State v. Eddon, 8 Wash. 292, 36 Pac. 139.

The other instructions requested, and the exceptions taken to those given, require no special notice. In so far as the requests were pertinent, they were embodied in the general instructions given by the court, and no error was committed by the instructions given.

Eor the errors above set out, however, the case is reversed and a new trial granted.

Mount, C. J., Hadley, Dunbar, Crow, and Root, JJ., concur.