Fleming

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 359 The appellant was charged with murder and convicted of manslaughter. He appeals from the judgment pronounced upon such conviction, and from an order denying his motion for a new trial. It is earnestly contended that the verdict is contrary to the evidence. It must be conceded by any fair minded person who reads the voluminous record on appeal, consisting of over four thousand pages, that even if there be sufficient evidence to legally sustain the verdict, the guilt of appellant by no means satisfactorily appears therefrom. The deceased, George F. Vallier, was a boy of about sixteen years of age, who, with a companion named Henry Goble, a boy of the same age, had run away from his home in Tacoma. *Page 360 They were "beating" their way south, with the intention of ultimately reaching San Francisco. Appellant, Daniel Fleming, a man of thirty-one years of age, was a state railroad policeman, in the employ of the Southern Pacific Company. On August 25, 1910, at about 10:45 P.M., the first section of train fifteen of the railroad company, bound…

If I were justified in assuming the correctness of the statement of facts contained in the opinion of the court I should unhesitatingly concur in the judgment of reversal. But by section 4 1/2 recently added to article VI of the constitution, this court (and each of its members) is forbidden to reverse a judgment of conviction in any criminal cause for error or abuse in pleading or procedure, unless after an examination of the entire record including the evidence it is of the opinion that the error has resulted in a miscarriage of justice. The construction of this provision depends upon the meaning of the phrase "miscarriage of justice." Evidently errors and abuses in matters of procedure do not constitute a "miscarriage of justice" for the provision assumes that they may not result in such miscarriage, and that the presumption that they have not so resulted must prevail until an examination of the evidence has overcome that presumption. What, then, is a "miscarriage of justice." The ordinary use of the phrase hitherto has been to characterize a case in which a person notoriously guilty of some serious offense has escaped conviction through some fault of those *Page 385…