, 1892-06-18
THE BROOKS CASE.

court will appear il, THE DAILY and WEEK
LY TRIBUNE.
State of Washington, respondent, VS.. Char
les Brooks, appellant. From Spokane
county.
The appellant was convicted of murder
in the first degree, and he took an appeal
to this court, alleging three grounds of
error: First, that the court erred in refus-
ing him a continuance; second, that the
court erred in rejecting the testimony of
certain non-eXpert witness, whereby it was
sought to prove that the appellant was in
sane third, that the Judge erred in saying
to the Jury "YOu will be left to determine
between the demands OF public justice and
the defense of the prisoner at the bar
1t appears by the record that on the 26th
day of September, 1884, by consent of both
parties, the cause was set for trial for Oc-
tOber 18th following. When the cause was
called for trial a continuance was asked for
the purpose of obtaining the attendance of
one Paul Darlington as witness for the
Defense who was resident of the county
of Stevens, in this state. A subpoena was
issued for him on behalf of the defendant
on the 9th day of October, but the only
step taken toward obtaininga a service there
of was to deliver it to the sheriff ofSpokane
county, with a request that he send it to
the sheriff of Stevens county for service. 1t
does not appear that said sheriff either re-
fused or consented to do so, or that the de-
tendant paid any further attention to the
matter until the time set for trial, when he
moved for continuance on the ground
that the witness had not been subpOenaed
1t seems to us that there is an entire fail
ure to shOWaany diligence in the premises
No excuse was shown for the several days
delay in having the subpoena issued, and it
is apparent that at the time the cause was
set for trial the defendant knew as we'll
then as he did at any time afterwards what
this witness would testify to; nor is there
any showing made as to why service of the
subpoena was not obtained, nor why the
defendant had not more diligently looked
after the same. 1t was no part of the du-
ties of the sheriff of Spokane county to look
after the service of this subpoena, and the
defendant should have taken some steps to
know whether his request was being car
ried out. His application for continu-
ance was defective in other particulars;
there was no showing that the matters
which he desired to prove by this witness
could not be proven by some other witness
present at the trial, or that the testimony
was not cumulative. Under the circum-
stances, and the Indifference which appears
to have been manifested by the defendant
as to obtaining the testimony or attend
ance of the witness Darlington, we cannot
think that he attached any great import
ance thereto. There was an entire failure
In the particulars mentioned to comply
with the requisites of the statutes relating
to cOntlnuances, and we have only cOnsld- !
cred the matter in consequence of the grav-
ity Of the offense Of which he was con-
Yicted.
AS to the second ground alleged: On the
trial one Charles ScutoheOn, nOn-expert
witness, was asked his opinion of the de-
fendant's sanity. An objection by the
state to his testifying thereto was sustained
by the court on the ground that no foun-
datlon had been laid for this testimony suf-
icient to warrant its Introduction. The
defendant was on trial for the murder of
his wife. Some time prior to
the commission of the offense he
had become separated from her. Pre-
ceding the foregoing question said
witness testified that he had known
the defendant for six or seven years; that
they "enjOyed the most friendly rela-
tiOns;" that he, the witness, saw defend
ant two or three times week after his sep
aratlon from his wife, extending over pc
riOd of several months, and at these times
conVersed with him. That the chief topic
of his conversation was in regard to his
separation from his wife; that he seemed
to be grieving about it. The witness was
here asked the following question: "What
did he say about it2" To this the state
objected; whereupon counsel for defendant
stated he wanted to show that in all his
conversations with his friends this sepa-
ration was the uppermost topic on the de-
fendant's mind, and that he was cOntinu-
ally talking about it. The court sustained
the objection to this question: to which
ruling the defendant excepted, and he
urges the same as error in connection with
the ground aforesaid. The witness had al
ready testified, however, that the matter
OF this separation was the principal topic
of the defendants conversations with him.
1t was entirely necessary to prove what the
witness said for the purpose stated. The
witness had testified to the fact, and while
nyva not ion Trrt ~
have gone into the details to test the truth
fulness of the statement if deemed mate
rial, the defendant had no right to detail
all these various conversations merely to
show that the defendant custOmarily
talked about this separation from his wife,
and it would have been necessary to have
gone into the same fully to cover the point
Indicated.
In answer to a question as to whether
the defendant stated the cause of said sep
aration, the witness said, "Well, he didn't
exactly state the cause, but he often spoke
threateningly of some man and woman
by the name of 'Brauge." Then the wit !
ness was asked: "From your conYer-
sations with Mr.. Brooks, and from your
observation of his conduct, what was your
opinion as to his sanity Z" The state OBJ
jected to the question on the ground of in
competency, and the court sustained the
objection. There was no error here. The
witness had so far testified to nothing up
on which the opinion of a non-eXpert as to
the sanity or insanity of the defendant
could be based, nor had he been asked any
questions for this purpose, either as 10 the
defendants conduct or conversations. 1t
is true he was in the habit of talking of
his and his Wife's arrangement, and he
had spoken threateningly of the parties
mentioned i'll connection Herewith, but
there was nothing remarkable in this. 1t
does not appear nor was there any attempt
to show that there was anything peculiar
about it otherwise.
Following this the court informed the
defendants attorney that he would allow
the witness to state whether there was any
thing unusual in the conduct or sayings of
the defendant that arrested the attention
of the witness, and upon being questioned
the witness said that he saw nothing un-
usual in the conduct of the defendant. In
answer to a question as to what the de-
fendant said which was unusual the wit
ness answered, "Well, he was terribly eX-
cited over the strain - he blamed Brauge
and his wife for separating them. No other
particulars were shown or offered, nor after
these matters were testified to was the wit
ness again asked as TO his opinion of the
sanity of the defendant and the matter
was apparently dropped at this point. If
the question had been renewed, it is doubt
full at least whether enough appeared from
the testimony of the witness to justify an
OplulOu from uA4l Ol Gh6 Oel6uQdubb
sanity, but it is not necessary to de-
eide this as the point was not raised
upon the testimony aforesaid subse-
quently given, and clearly there was
no error in not allowing the witness
to answer the question upon the testimony
he had given at the time it was asked
While, according to the weight of author
ity, the opinion of nOn-eXpert witness as
to the sanity ofthe defendant may be given,
yet such an opinion can only be given after
the witness has testified to acts and sayings
of the defendant, and as to his conduct
which led him to think that the prisoner
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