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[No. 631. Decided May 14, 1891.]

ALBERT FREIDRICH V. THE TERRITORY OF WASHINGTON.

MURDER-INDICTMENT-CHARGING JURY-COMMENT ON FACTS

PREJUDICIAL ERROR-EXCEPTIONS.

An indictment charging that defendant "purposely and of his deliberate and premeditated malice, killed one John Scherbring, then and there being, by then and there purposely, and of his deliberate and premeditated malice, shooting and thereby mortally wounding the said John Scherbring with a revolver pistol," etc., is sufficient to charge the crime of murder in the first degree.

Section 221, subd. 6, Code 1881, requires the court, in charging the jury, to state to them all matters of law necessary for their information in finding a verdict, with only such allusion to the evidence as may be necessary; but a court oversteps the bounds of a legal charge, though telling the jury the facts are for their decision alone, where, under the guise of an illustration of the meaning of circumstantial evidence, it devotes a long, oral charge to an argument of the very facts of the case, taking up the material constituents of the territory's case, dovetailing the facts together, and deducing and announcing a conclusion to the jury.

Although there is no exception to the whole or a part of the charge on the ground that it is an argument upon the facts, yet, in a capital case, if there is prejudicial error, which is patent upon the face of the record, denying the accused the fair and impartial trial which is his right, the supreme court will not allow these technical objections to deprive defendant of a new trial.

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Appeal from District Court, King County.

Trial of Albert Freidrich for murder upon an indictment as follows:

"Albert Freidrich is accused by the grand jury of the Territory of Washington for the counties of King and Kitsap, in the third judicial district of said territory, by this indictment, of the crime of murder in the first degree, committed as follows: The said Albert Freidrich, on the 14th day of July, 1887, in the county of King, in the district aforesaid, purposely, and of his deliberate and premeditated malice, killed one John Scherbring, then and there being, by then and there purposely, and of his deliberate and premeditated malice, shooting and thereby mortally wounding the said John Scherbring with a revolver pistol, which he, the said Albert Freidrich, then and there had and held, contrary," etc.

Defendant demurred to the indictment on the following grounds:

"First: That the same stated no facts sufficient to constitute the crime of murder.

"Second: That the same did not substantially conform to the Code of Washington."

The demurrer was overruled and exceptions allowed. The facts are sufficiently stated in the opinion.

James Hamilton Lewis, for appellant.

The indictment is insufficient; it charges no death, no time of death, or that the assailed is dead; states "no facts constituting the offense," and charges no murder. Com. v. Adams, 1 Gray, 481; Com. v. Dedham, 16 Mass. 141; Moore v. Com., 6 Metc. 243 (39 Am. Dec. 724); State v. Morgan, 85 N. C. 581; 1 Archb. Cr. Pl. & Pr., 791, and citations; Bishop, Directions and Forms, 517; State v. Coleman, 17 S. C. 473; State v. Sundheimer, 93 Mo. 311 (6 S. W. Rep. 52); State v. Blan, 69 Mo. 317.

As to the court's assuming that certain facts are proved,

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and singling out facts, see White v. State, 13 Tex. 133; Proffatt, Jury Trials, §§ 319, 320, 323, 327, 336; Harris, Crim. Law, 339, note, and cases cited; Blackwell v. State, 67 Ga. 76 (44 Am. Rep. 217); Caldwell v. United States, 8 How. 366; Brown v. State, 3 Tex. App. 294; People v. Keefer, 65 Cal. 232; People v. Williams, 17 Cal. 142; People v. Hurley, 57 Cal. 145; Sharp v. State, 51 Ark. 147 (14 Am. St. Rep. 27); Leonard v. Territory, 2 Wash. T. 381.

John F. Miller, Prosecuting Attorney, and Ronald & Piles, for The Territory.

The obvious purpose of the sections of our code prescribing general regulations as to the form and substance of indictments, is to do away with the common-law tests. People v. King, 27 Cal. 507 (87 Am. Dec. 95); People v. Ah Woo, 28 Cal. 206; People v. White, 34 Cal. 186; People v. Dick, 37 Cal. 277; People v. Murphy, 39 Cal. 52.

Trial by a jury in the courts of the United States is a trial presided over by a judge with authority, not only to instruct the jury upon the law, but also, when in his judgment the due administration of justice requires it, to aid the jury by explaining and commenting upon the testimony, and even giving them his opinion upon questions of fact; provided only he submits those questions to their determination. U. S. v. Philadelphia, etc., R. R. Co., 123 U. S. 113.

This rule prevailed in our territory and in the courts of all the states wherein there was no constitutional or legislative limitation upon the subject. And it may be summed up by the statement that under it it is the office of the judge in the exercise of a sound discretion to review the evidence in his charge to the jury-arraying the testimony of the opposing witnesses, pointing out the bearings of the different elements of the evidence upon the questions in issue, intimating his opinion as to the weight of each, and illustrating his meaning and enforcing his observation in

May, 1891.]

Opinion of the Court-STILES, J.

such manner as he thinks proper- his manner of exercising this discretionary power not being the subject of exception so long as he gives the jury distinctly to understand that his assertions are advisory merely, and that the responsibility of deciding the facts rests entirely with them. 2 Thompson on Trials, § 2294; Ware v. Ware, 8 Me. 42, 59; Mansfield v. Corbin, 4 Cush. 213; Flanders v. Colby, 28 N. H. 34; Patterson v. Colebrook, 29 N. H. 94; Bruch v. Carter, 32 N. J. Law, 554; Gardner v. Picket, 19 Wend. 186; People v. Rathbun, 21 Wend. 509; McKee v. People, 36 N. Y. 113.

The judge may read the testimony from the shorthand writer's notes, or he may recite it from memory, or he may give examples illustrating his meaning and the law, and if he instructs the jury that they are the exclusive judges of the weight to be given to the testimony, he commits no error. 2 Thompson on Trials, §§ 2281, 2282; People v. Williams, 59 Cal. 674; State v. Jones, 29 S. C. 201 (7 S. E. Rep. 296); People v. Perry, 65 Cal. 568; McRae v. Lilly, 1 Ired. L. (N. C.) 118. Stating the testimony is a very different thing from declaring what it shows; if the judge states the testimony, leaving the jury to determine what it shows, it is no error. People v. Casey, 65 Cal. 260; Hawley v. Chicago, etc., R. R. Co., 71 Iowa, 717 (29 N. W. Rep. 187); Andrews v. Parker, 48 Tex. 94. Nor is it error for the court to instruct the jury that the evidence tends to prove a certain matter in issue. Morris v. Lachman, 68 Cal. 109; People v. Perry, 65 Cal. 568; People v. Vasquez, 49 Cal. 560; Koerner v. State, 98 Ind. 13; Beattie v. Hill, 60 Mo. 72.

The opinion of the court was delivered by

STILES, J.-The indictment was sufficient to charge the defendant with the crime of murder in the first degree. Leonard v. Territory, 2 Wash. T. 381 (7 Pac. Rep. 872); Timmerman v. Territory, 3 Wash. T. 445 (17 Pac. Rep. 624).

Opinion of the Court-STILES, J.

[2 Wash.

The appellant and the deceased had been close friends, and spent the day of July 14, 1887, in Seattle and its suburbs. They had carried beer out with them, and drank freely of it. About sunset they walked out on the Grant street bridge, and stopped for a short while at a saloon on the bridge. There they had a glass or two of beer, two other persons being present and drinking with them. They were not intoxicated, and the persons at the saloon heard no quarrel or misunderstanding between them. At about dark they left the saloon together to return to town, and within a few minutes persons in the neighborhood heard two shots on the bridge, and heard a cry of distress. Several of those who heard the shots ran in the direction from which the unusual sounds seemed to come, and found the deceased leaning over the bridge-rail, with a bullet imbedded in his head just back of the left ear. He was conscious, and able to walk with assistance. Being asked who had shot him, he answered that he did not know, and in this statement he persisted, until the appellant was brought before him, when he avowed that appellant had shot him, but gave no particulars. He gave, as a reason why he had at first said he did not know who his assailant was, that he did not then think he was very badly hurt, and did not wish to give away his friend. He died within a few days after he was shot, without making any other admissible statement. Appellant was arrested, indicted, convicted of murder in the first degree, and sentenced to death. Aside from proof of what the deceased said in the presence of the appellant, as above stated, all the evidence at the trial was circumstantial; it being devoted to showing the attempted flight of the appellant immediately after the shooting, and his confused and contradictory statements after his arrest, with the fact that, in the presence of deceased, he made no positive denial of Scherbring's charge that he had fired the fatal shot. No effort was made to show a motive for the murder.

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