66 Wash. 537 | Wash. | 1912
This defendant, Antonio Moretti, and three others, all Italians, were jointly charged, by information filed in the superior court for Adams county, with the crime of murder in the first degree, committed by shooting one Antonio Colucci, on December 18, 1910, near Lind, in Adams county. The defendants were all charged as principals without any distinction. Moretti was awarded a separate trial, which resulted in his conviction, as charged, upon which he was sentenced to be hanged. - From this conviction and sentence, he has appealed.
It is next contended in behalf of appellant that the trial court erred in excluding from the consideration of the jury appellant’s claim that he participated in the robbery, resulting in Colucci’s death, because of duress. The court’s ruling upon this question is contained in certain instructions to the jury stating, in substance, that there was no question in the case of justifiable or excusable homicide, within the legal definition of those terms. Appellant’s claim of duress is based upon the testimony of himself and another witness to the effect that, a day or two before the killing of Colucci, one of the defendants at Spokane threatened to kill appellant if he did not go along and help to rob Colucci. Appellant’s own testimony renders it plain that he did go from Spokane to Lind on Saturday night, December 17, with the other defendants for the express purpose of robbing Colucci on Sunday morning, December 18,
“Whenever any crime, except murder,'is committed or participated in by two or more persons, any one of whom participates only under compulsion by another engaged therein, who by threats creates a reasonable apprehension in the mind of such participator that in case of refusal he is liable to instant death or grievous bodily harm, such threats and apprehension constitute duress, which will excuse such participator from criminal prosecution.”
We are quite unable to understand how this section gives appellant any right to invoke the defense of duress in this case. He would be guilty of murder under the undisputed facts of this case even though he did riot have a specific intent to lull Colucci, since he had the intent to rob Colucci, and the killing occurred by one of his confederates while in the very act of the robbery. Indeed the evidence is conclusive that the money was taken from the person of Colucci
“The killing of a human being, unless it is excusable or justifiable, is murder in the first degree when committed either— (1) With a premeditated design to effect the death of the person killed, or of another; or (2) By an act imminently dangerous to others and evincing a depraved mind, regardless of human life, without a premeditated design to effect the death of any individual; or (3) Without a design to effect death, by a person engaged in the commission of, or in an attempt to commit, or in withdrawing from the scene of a robbery, rape, burglary, larceny or arson in the first degree; or (4) By maliciously interfering or tampering with or obstructing any switch, frog, rail, roadbed, sleeper, viaduct, bridge, trestle, culvert, embankment, structure or appliance pertaining to or connected with any railway, or any engine, motor or car of such railway. . . .”
It is clear that, under subdivision three of this section, it is not necessary that there should be a specific intent to kill to constitute murder when there is an intent to commit robbery and the killing occurs in the commission of such intended robbery, by the person engaged therein.
In the case of State v. Brown, 7 Ore. 186, the supreme court of that state held that, in such a case, the purpose to kill is incontrovertibly implied from the crime in which the person committing the homicide is engaged at the time. That appellant participated in this robbery, in the eyes of the law, is shown by his own testimony. As to that crime, he is in the same situation as if he had physically done every act constituting that robbery. It follows, that since the killing of Colucci was committed by one of appellant’s confederates while in the act of committing the robbery, appellant is as much responsible for the killing as he is for the robbery. By the very terms of § 2256, above quoted, this excludes the defense of duress. It might well be argued that, even if the duress mentioned in § 2256 were available to appellant in this case, he has not offered any evidence of reasonable apprehension of his liability to “instant death,”
These are all of the errors claimed or argued by counsel for appellant. A review of the entire record convinces us that appellant had a fair trial, which was free from prejudicial error, and that there was abundant evidence to support his conviction. It is not a pleasant duty to have to write the last word in affirmance of a death sentence; but such is the means provided by the law of the land for the protection of society against crime of this nature. Whether or not it is the wisest and best means available to that end, is not within our province to decide. The facts shown by the record in this case, and the law applicable thereto, compels the affirmance of appellant’s conviction. The judgment of the learned trial court is affirmed.
Dunbar, C. J., Mount, Fullerton, and Gose, JJ., concur.