Duncan research files of
Mary Ann (Duncan) Dobson
the Genealogy Bug
Last revised July 31, 2008
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Duncan research files of |
1860-1870 Spokane Co. WA Census
No Duncan indexed
"Reports of cases determined in the Supreme Court of the state of Washington" by Euge G. Kreider, Vol.4, pgs.506 to 509 (California State Law Library, Sacramento, 1/2004)
MARY C. CUNNINGHAM, Appellant, v. J. R. DUNCAN et al., Respondents; No. 597; Supreme Court of Washington; 4 Wash. 506; 30 P. 647; July 6, 1892, Decided.
Appeal from Superior Court, Spokane County.
Action by Mary C. Cunningham against J. R. Duncan, Sarah E. Duncan, C. S. Boyer, W. C. Sivyer, Alonzo M. Murphey and wife and R. G. Tabor and wife for specific performance of a contract to convey real estate and for alternative relief.
On the 23d day of October, 1890, the plaintiff entered into a contract with the defendants J. R. and Sarah E. Duncan for the purchase of certain real estate, and an agreement and deed to the property were made and placed in escrow with the defendants, C. S. Boyer and W. C. Sivyer, to be delivered by them to plaintiff when she had complied with the escrow agreement. At the date of the execution of the deed plaintiff paid Duncan and wife $400 and assumed the payment of a mortgage for $300 on the property. The agreement provided for the payment of $700 more within thirty days, or if not then paid, $800 if paid on or before January 1, 1891, and in case plaintiff was not able to pay cash then, the balance was to be secured by mortgage on the property. Shortly after the execution of the agreement plaintiff made a further payment of $200. On January 1st plaintiff was not able to pay the balance of the purchase price, and the Duncans, on or about February 10, sold the property for $950 to the defendant Alonzo M. Murphey, through the defendant R. G. Tabor, a clerk in the office of Murphey, and his agent, the said Murphey paying $200 cash, assuming the mortgage of $343, and giving note for $780, with a credit on it of $343. Mrs. Duncan told defendant Tabor about the escrow agreement with plaintiff, and both Tabor and Murphey had full knowledge of plaintiff's rights before the purchase. Subsequently Murphey borrowed $700 from one Bibb and secured the same by mortgage on this property. The court below dismissed the complaint as to all the defendants except the Duncans, declined to make any decree as to them, and transferred the cause to the legal side of the court for a jury trial to determine the question of their liability to the plaintiff. Plaintiff appeals.
The opinion of the court was delivered by DUNBAR, J.-- It is exceedingly difficult to determine from the testimony in this case whether or not the plaintiff has any equities which can be enforced, so far as the defendants Murphey and Tabor are concerned. In the absence, however, of an affirmative opinion to the contrary we will accept the conclusions of fact of the judge who tried the case as correct, so far as they were stated. So far as the demands of the plaintiff against the defendants J. R. and Sarah E. Duncan are concerned, we are of the opinion that the plaintiff should have judgment for the sum of six hundred dollars, with interest thereon since October 23, 1890. The only question involved, then, is, can the court, upon the failure of the petition for specific performance, assess damages in lieu thereof?
Without going into a general discussion of this interesting question, which was reviewed at some length by this court in Morgan v. Bell, 3 Wash. 554 (28 P. 925), the testimony in this case leads us to the conclusion that plaintiff was unaware of the inability of the defendants to convey, by reason of the mortgage to Bibb, until after the commencement of the action, and that the suit was commenced in good faith, which, we think, entitles her, especially considering all the circumstances of the case, to a judgment for the money she had paid.
The defendants Duncan rely largely on the case of Drown v. Ingels, decided by this court at its January term, and reported in 3 Wash. 424 (28 P. 759). But nothing that was decided in that case affects the case at bar. In that case time was made the essence of the contract, and it was especially agreed that if certain deferred payments were not paid when due, plaintiff would forfeit all the money paid down, and all her rights under the contract. But here there was no such agreement, and the action of both the parties plainly shows that time was not understood to be the essence of the contract.
The judgment of this court is, that the defendants, Alonzo M. Murphey, Mrs. Alonzo M. Murphey, R. G. Tabor and Mrs. R. G. Tabor, have and recover of the plaintiff, Mary C. Cunningham, for their costs of this appeal, and that the plaintiff, Mary C. Cunningham, have and recover a judgment against the said defendants, J. R. Duncan and Sarah E. Duncan, for the sum of six hundred dollars, with interest on the same at the rate of ten per cent. per annum since the 23d day of October, 1890, together with costs of appeal and costs of trial in the lower court; and that the defendants, Murphey, Tabor and Boyer and Sivyer, have judgment against the defendants, J. R. Duncan and Sarah E. Duncan, for their costs of the lower court, and it is so ordered.
ANDERS, C. J., and HOYT, SCOTT and STILES, JJ., concur.
"Reports of cases determined in the Supreme Court of the state of Washington containing decisions rendered from July 12, 1893, to January 6, 1894, inclusive, and ..." by Euge G. Kreider, Vol.7, pgs.336 to 346 (California State Law Library, Sacramento, 1/2004)
THE STATE OF WASHINGTON, Respondent, v. ARTHUR DUNCAN, Appellant; No. 1003; Supreme Court of Washington; 7 Wash. 336; 35 P. 117; December 4, 1893, Decided.
Appeal from Superior Court, Spokane County.
The opinion of the court was delivered by SCOTT, J.-- The defendant, Arthur Duncan, was convicted of the crime of larceny, and he appealed to this court, alleging as error the granting of a continuance of the cause from the 18th to the 24th of March without his personal presence. It is claimed that this is a violation of Sec. 22, art. 1 of the constitution, which provides that, "in criminal prosecutions, the accused shall have a right to appear and defend in person and by counsel." We are of the opinion, however, that this provision has reference to matters connected with the trial, and not to anything preliminary thereto, and the granting of a continuance is not a part of the trial, but is a preliminary matter. Counsel for the prisoner was present at the time said order was granted, and objected, but not on the ground that the defendant was absent. It does not appear that the defendant was subjected to any injustice or injury in the premises.
Upon the trial of the cause the defendant took the stand and testified in his own behalf. Upon his cross examination, the prosecuting attorney was permitted to ask him questions relative to his having fled soon after the crime was committed for the purpose of evading the prosecution. It is contended that this was erroneous upon two grounds: (1) Because not proper cross examination; (2) because it was a violation of Sec. 9, art. 1 of the constitution of the state, which provides that "no person shall be compelled in any criminal case to give evidence against himself."
As to the first ground, it is contended that it was improper cross examination, because in the direct examination of the defendant he was only questioned touching his movements on the night prior to his arrest and on the morning of his arrest, while the questions relating to his flight from the state and absence from the trial of his brother, who was indicted with him, related to matters happening subsequent thereto. In his direct examination the defendant had been questioned generally with regard to his connection with the crime charged, and testified in relation to it. He was not asked the direct question as to whether or not he was guilty, nor did he in specific words deny his guilt, but the whole purpose of his testimony was to show that he was not guilty, and we are of the opinion that the questions complained of were proper as tending to affect the credibility of the witness, the fact of flight was some evidence of guilt, and, as such, tended to show that the defendant had testified untruthfully in endeavoring to show that he was not guilty. It had a direct bearing upon the truthfulness of his testimony in chief.
It is contended that the jury would not stop with considering the fact of flight as affecting the credibility of the defendant only, but would consider it as evidence of his being guilty of the crime charged. It is doubtful whether a dividing line can be drawn under the facts of this case, for the only way it could affect his credibility was in showing that he was guilty of the offense charged, and that consequently the testimony he had given in his direct examination to the effect that he was not guilty was untrue. But, be this as it may, no error can be founded in the premises, for the instructions given by the court to the jury that the fact of flight might be taken as evidence of guilt were given at the request of defendant. For instance, defendant requested the court to charge as follows:
"The jury may consider as one of the circumstances in this case the fact that defendant did not appear when his case was called for trial a few months after his arrest; but the fact that defendant fled is not conclusive proof of his guilt, and in the absence of other evidence is not sufficient to authorize a verdict of guilty. In considering the circumstance of flight, the jury should consider the reasons why defendant fled, his temperament, his surroundings, the advice of his friends, the urgings of his family, and all that influenced him to flee."
And the court gave this instruction with others relating thereto, requested by the defendant; consequently, if a distinction can be drawn between considering such evidence only as affecting the credibility of the defendant and not as evidence of his guilt of the crime charged, the defendant is not in a position to take advantage of it in this case. Nor was such cross examination a violation of the constitutional provision aforesaid. When a defendant in a criminal case takes the witness stand, he assumes the character of a witness, and as such is subject to be contradicted, disputed, or impeached, the same as any other witness.
It is further contended that the court erred in charging the jury that the defendant might be convicted if, though not standing by at the time the taking was done, he advised and counseled it with the idea and with the intention of receiving the benefits of the property taken, on the ground that this was in effect telling the jury that the defendant might be found guilty under the information charging him as principal, if the evidence showed him to have been an accessory before the fact. Sec. 1189, Code Proc., provides that--
"No distinction shall exist between an accessory before the fact and a principal, or between principals in the first and second degree, and all persons concerned in the commission of an offense, whether they directly counsel the act constituting the offense, or counsel, aid and abet in its commission, though not present, shall hereafter be indicted, tried and punished as principals."
Under a statute substantially like this the supreme court of California has held that the distinction between an accessory before the fact and a principal is abrogated, and that an accessory before the fact must be prosecuted, tried and punished as principal, and that it is sufficient to charge such accessory directly as principal.
It is contended that charging the defendant as principal does not sufficiently put him upon his guard and advise him of the facts to be proven against him, where it is sought to show that he was an accessory before the fact but not a direct participant in the crime itself, and that consequently an innocent man might be surprised in a trial by the proof offered, and not have sufficient opportunity to prepare therefor in consequence of his not having known in advance the facts to be shown against him. But we doubt if there is any more foundation for this contention than there would be where the effort was to show the defendant a principal in the commission of the crime charged. For instance, in the crime charged here, that of larceny of a steer belonging to one Neal Smythe, it was possible for the offense to have been committed in so many different ways and under such a variety of circumstances as principal, even, that in the case of an innocent man the formal charge itself might not afford any accurate information of the facts and circumstances to be shown; but in such a case, where a party is prosecuted as principal, it is not contended that there need be anything more than a formal charge. It is not necessary to set up the evidence to be offered, nor the particular facts to be established. For instance, as to the particular part of the county where the property was stolen, whether taken in the night or in the day time, how taken, or how converted to the use of the defendant, the kind of property other than as one steer, etc., as to all of which the evidence might widely vary in different cases and yet be legitimate evidence under an information couched in practically the same words charging the defendant as principal. And until it is made necessary by law, in the case of a prosecution for a crime, to set up the particular acts to be proven against a principal, it is not necessary to set the same forth in the case of an accessory before the fact.
The defendant requested the court to give the following instruction: "The jury are instructed that the bare possession of stolen property alone is not sufficient to sustain a verdict of guilty," which the court gave, but added the following: "It is only a circumstance tending to show guilt." It is contended that this is error, as being a violation of Sec. 16, art. 4 of the constitution, which provides that "judges shall not charge juries with respect to matters of fact, nor comment thereon, but shall declare the law." It is not claimed, however, that it is not a correct statement of the proposition, and it is a sufficient answer to say that as the defendant requested an instruction upon this point he cannot complain upon the ground stated, because the court gave a more complete statement than he had requested.
Judgment affirmed.
DUNBAR, C. J., and HOYT, J., concur.
ANDERS, J. (concurring).-- I think the cross examination of the defendant in this case was not carried beyond legitimate bounds. Whenever a defendant becomes a witness to disprove a criminal charge, he thereby subjects himself to the same liabilities in cross examination as does any other witness, and may be cross examined as to any pertinent matters, even although such testimony may tend to criminate him. The statute authorizing parties charged with offenses to testify in their own behalf was never intended to enable them to testify as to facts tending to disprove guilt, and, at the same time, to suppress other facts tending to shake their credibility, or to throw additional light upon, or give color to, facts and circumstances detailed in the examination in chief. The object of all testimony is to elicit the truth; and experience has shown that it is only by cross examination that the whole truth can be discovered. No one can be compelled to give evidence against himself, nor can any one accused of crime be compelled to testify in his own behalf, and, if he does not see fit to do so, it is the duty of the court to charge the jury that no presumption of guilt arises therefrom. But when a person charged with the commission of an offense voluntarily assumes the character of a witness, he waives his constitutional protection to the extent, at least, of being cross examined according to the rules of evidence. And if he states facts tending to prove his innocence, it seems to me that it would be contrary to every consideration of justice to permit him to refuse to state other facts connected with the offense which might tend to show the falsity of his testimony in chief. No one would contend that he could not be compelled to answer whether he had not made declarations out of court contrary to his testimony on the witness stand, and I am unable to understand, upon principle or reason, why he should be permitted to refuse to state whether he had not acted contrary to his declarations as a witness.
The objection that the court's modification of the instruction requested by the defendant was in contravention of Sec. 16, art. 4 of the state constitution, is without foundation, for the reason that all that was added thereto was plainly implied in the instruction as originally presented to the court. I see no error in the record, and think the judgment ought to be affirmed.
STILES, J. (dissenting).-- It is a general rule of evidence, to which the courts of this country have yielded adherence since Railroad Co. v. Stimpson, 14 Pet. 461, that a party has no right to cross examine any witness except as to facts and circumstances connected with the matters stated in his direct examination; and if he wishes to examine him as to other matters he must do so by making the witness his own, and calling him as such.
I think this court, in the foregoing opinions, means to sustain this rule; but it holds that the questions asked of the defendant by the prosecution were rightfully asked because they tended to break down his credibility as a witness. But I see nothing of that kind in it. The defendant had testified to nothing as to his whereabouts after the day of the alleged crime; but merely attempted to account for the way in which he came to be at the place where the steer was killed. It was perfectly competent, then, of course, for the state to test his credibility as an ordinary witness in any of the well recognized modes of making such a test. But instead of that it was allowed to go into an independent examination into a matter wholly foreign to anything that had been testified to. Flight is a circumstance which may tend to show a consciousness of guilt, and, therefore, guilt itself, thereby negativing the legal conclusion that a defendant is not guilty. If a defendant testify on the stand to the legal conclusion that he is not guilty, then the circumstance of flight would tend to contradict his testimony, but it would not affect his credibility as a witness, that is, the probability that he would speak the truth. The argument of the court is, that although this defendant did not say he was not guilty, the very fact that he testified was an assertion of that conclusion; but the obvious answer to that is, that witnesses do not testify to the guilt or innocence of a prisoner, but to facts from which the legal conclusion, one way or the other, may be drawn. The law said, for this defendant, that he was not guilty until proven so, and in giving him the privilege of testifying it did not offer him a trap wherein, being caught, confessions of guilt might be wrung from him. As well might it be contended that a prisoner testifying to an alibi could be asked on cross examination if he had not stated, out of court, that he actually committed the crime charged. Precisely such an attempt was made under the guise of an impeachment of the witness in People v. Yeaton, 75 Cal. 415 (17 P. 544), and the judgment was reversed by a unanimous court for the error committed in compelling the witness to answer.
The constitutional provision allowing defendants in criminal cases to testify was undoubtedly intended to benefit the accused; if it had been for the benefit of the state it would have provided that the state might call him. But if the prosecution can keep back the evidence which it has in its possession, showing flight, for instance, until the defendant is on the stand, and then compel him to testify to it, it is thereby permitted to make him its own witness to prove a material fact in its own case, which the constitution expressly forbids. It seems to me that the inevitable tendency of this decision must be either to drive all criminal defendants out of the witness chair, and thus annul the constitution; or to subject every such defendant, who may testify to the most insignificant fact in his own behalf, to account for himself in every conceivable way, even to admitting the very substance of the offense charged, on pain of prosecution for perjury if he fails to tell the truth. The constitutional guaranty is, that no person shall be compelled in any criminal case to give evidence against himself. To give evidence is to state facts, and to be compelled to state the fact that he ran away is to compel a prisoner to give evidence against himself.
"These statutes (permitting accused persons to testify), however, cannot be so construed as to authorize compulsory process against an accused to compel him to disclose more than he chooses; they do not so far change the old system as to establish an inquisitorial process for obtaining evidence; they confer a privilege which the defendant may use at his option. If he does not choose to avail himself of it, unfavorable inferences are not to be drawn to his prejudice from that circumstance; and if he does testify, he is at liberty to stop at any point he chooses, and it must be left to the jury to give a statement, which he declines to make a full one, such weight as, under the circumstances, they think it entitled to; otherwise the statute must have set aside and overruled the constitutional maxim, which protects an accused party against being compelled to testify against himself, and the statutory privilege becomes a snare and a danger." Cooley's Const. Lim. (5th ed.), p. 386.
The correct rule is laid down in Boyle v. State, 105 Ind. 469 (5 N.E. 203), where it is said: "The cross examination of a witness must be confined to the subject opened by direct examination. This settled rule does not, however, restrict the cross examination to the specific facts developed by the direct examination, but does confine it to the subject of that examination. Where a subject is opened by the direct examination, the cross examining counsel may go fully into the details of the subject, and is not confined to the particular part of it embraced within the questions asked upon the direct examination. . . . In this instance the accused, when on the witness stand, had given account of his movements upon a day named, and it was proper to go fully into the subject upon cross examination, and the state was not confined to the particular period of time designated in the questions asked on direct examination."
Deeming this a very important matter in the administration of criminal law, and that the decision is contrary to all authority, I have thought it best to record my dissent at length.
Pension Index Card File, alphabetical; of the Veterans Administrative Contact and Administration Services, Admin. Operations Services, 1861-1934; Duff to A-J Duncan (negative FHL film 540,888, some cards very faint); Joseph Duncan to Dunn (positive FHL film 540,889, some cards very dark)
Cataloged under Civil War, 1861-1865, pensions, indexes; does not say if Confederate or Federal, but probably Federal. Negative film, some cards much too faint or dark to read, some cards blurred or faded, particularly the service unit and the dates of application. Most of the very faint or dark cards were in a slightly different format, with space for years enlisted and discharged which were sometimes filled in. Many of these were for service in later years, although one or two were for service ca 1866.
Name of soldier, alias, name of dependent widow or minor, service (military unit or units), date of filing, class (invalid or widow or minor or other), Application #, Certificate #, state from which filed (sometimes blank), attorney (sometimes blank, MAD: did not usually copy), remarks. Sometimes the "Invalid" or "Widow" class had an "s" added to it before the application #; occasionally the area for the service information included a circled "S". The minor's name was frequently that of the guardian rather than the minor.
The military unit was frequently the Company Letter, the Regiment Number, sometimes US Vet Vol Inf. (US Veteran Volunteer Infantry), L.A. (Light Artillery), H.A. (Heavy Artillery), US C Inf (US Colored? Infantry), Cav. (Cavalry), Mil. Guards, V.R.C. (?Volunteer Reserve Corps?), etc. Sometimes there were several service units given.
Cards appear to be arranged by the last name, first name, middle initial if any, and state (including "US") of service.
Duncan, Andrew J., widow Duncan, Sue D.; C 16 ILL Inf.; 1865 May 6, Invalid Appl. #67608, Cert. #89667; 1916 Aug. 12, Widow Appl. #970118, Cert. #735753, Wash. (MAD: enlisted Bethel, Morgan Co. IL; 1900 Spokane Co. WA, b.1836 TN, Susanna b.1837 OH; 1870 Douglas Co. IL)
Duncan, Jesse R., widow Duncan, Sarah E.; Indian Wars; 1863-1864, 1878-1898, Oregon Vols.; 1927 June 6, Widow Appl. #1583480, no cert., Act of Nov. 3, 1927, Wash.; remarks, Died May 4, 1892, Spokane, Wash.
"An illustrated history of Spokane County, state of Washington" by Jonathan Edwards; pub. San Francisco?: W.H. Lever, 1900, 806 pgs. (LH10951, HeritageQuest images 5/2007; FHL book 979.737 H2ea and film 1,321,442 item 11 and 1,000,643 item 1 and book 979.737 H2e)
Pg.548-549: JAMES W. KNOW, son of James R. and Elizabeth, was born in Lafayette county, Missouri, April 3, 1860. His parents removed to Nevada when he was four years old, and later to Santa Cruz, California ... at the age of 21 years he left home ... he came to Latah August 11, 1881 ... Mr. Know was married February 1, 1893, to Belle, daughter of William Duncan, of Tennessee. They have had seven children: Virgie and James, the oldest, and four, Leoma, Leona, Leola and Leon, quadruplets, were born June 20, 1897, they being the only similar births recorded in the state of Washington. Leon and Leoma died when six months old, but the others are living. Their youngest, Dewey, was born October 1, 1898.
Pg.574: HON. CORNELIUS E. MOHUNDRO, fruit raiser and gardener at Latah, was born in Jackson county, Tennessee, October 2, 1836. In 1849 the family moved to Webster county, Missouri. April 15, 1861, enlisted in the Missouri Home Guards ... September 27, 1864, member of Company G, Sixteenth Missouri Volunteer Infantry, until mustered out April 4, 1865. Justice of Peace. In 1882 Mr. Mohundro came to Columbia County, Washington, then 8 years later to Oakesdale and from there in 1894 to Latah ... He was married in Webster county, Missouri, September 16, 1860, to Miss Isabella J. Duncan, a native of Indiana, and to their union have been born six children: Joseph L., county clerk of Columbia county; William G., farmer; Mary E., wife of Austin Pintler; Martha J., wife of T.M. Hadley of Latah; Sarah E., wife of George D. Stone, of Latah, and Julia A.
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