118 Wash. 198 | Wash. | 1922
— The appellant, Rader, was informed against for murder in the first degree, for killing one Bud Dean Curtis. At the trial, the jury returned a verdict finding him guilty of murder in the second degree. This appeal is from the judgment and sentence pronounced on the verdict.
The errors assigned relate solely to certain instructions given hy the court to the jury, and to the refusal of the court to give certain requested instructions. To an understanding of the pertinency of the objections made, a brief review of the facts is necessary. In the early part of the year 1920, the appellant, together with one Knight, was engaged in the wood business near Lake City, in King county, under the firm name of Ranight Fuel Company. Near the middle of January, 1920, Curtis and his wife entered the employment of the company. Curtis worked in the woods, and Mrs. Curtis kept the books of the concern, and with her sister, Mrs. Patterson, whose husband was also in the employ of the company, attended the telephone calls. Mrs. Curtis seems also at times to have worked at manual labor in the wood yard. On February 8, following, Curtis and Patterson quit the employment of the fuel company, leaving their wives at the fuel company’s place of business; the wives continuing in the duties they had theretofore performed. Between this time and the time of April 2, 1920, both Curtis and Patterson visited their wives, but whether once or more the evidence of the wives disagrees. It is in evidence, however, that Curtis came to the place of business on the Friday of April 2, and in the presence of Mr.
The foregoing facts are gathered from the testimony of the witnesses for the state; the appellant did not testify himself, nor did he call any witnesses on his own behalf.
The statute defines homicide as follows (Rem. Code, § 2390; P. C. §8995):
• “Homicide is the killing of a human being by the act, procurement or omission of another and is either (1) murder, (2) manslaughter, (3) excusable homicide or (4) justifiable homicide.”
Murder in the first and second degrees is defined, in so far as the definitions are applicable here, in the following language (See Rem. Code, §§ 2392, 2393):
“The killing of a human being, unless it is excusable or justifiable, is murder in the first degree when committed . . . with a premeditated design to effect the death of the person killed. . . .”
“The killing of a human being, unless it is excusable or justifiable, is murder in the second degree when . . . committed with a design to effect the death of the person killed, . . . but, without, premeditation, ...”
Manslaughter is defined (Rem. Code, § 2395; P. C. § 9000):
“In any case other than those specified . . . homicide, not being excusable or justifiable, is manslaughter.”
“Under the laws of this state the killing of a human being is murder in the first degree when committed with a premeditated design to effect the death of the person killed.
“Premeditated means thought over beforehand and for any appreciable length of time, however short. When a person, after any deliberation, forms a design to take human life, the killing may follow immediately after the formation of the settled purpose and it will be murder in the first degree. The law requires some space of time in which a design to kill is deliberately formed.
“Murder in the second degree, is the killing of a human being when committed with a design to effect the death of the person killed but without premeditation.
‘ ‘ The killing of a human being, unless it is excusable or justifiable, is manslaughter when it is committed without design to effect death and without premeditation.
“Before you are entitled to find the defendant guilty of murder in the first degree, as charged in the information, the state must convince you beyond a reasonable doubt of all the following elements of that crime:
“1. That the defendant, on or about the 3rd day of April, 1920, did shoot and inflict wounds upon Bud Dean Curtis with a revolver pistol;
“2. That the defendant did this act with a premeditated design to effect the death of said Bud Dean Curtis;
“3. That as a result of the said wounds so inflicted the said Bud Dean Curtis died on or about said 3rd day of April, 1920;
“4. That the said act upon the part of the defendant occurred in King county, state of Washington.
“If you find from all the evidence admitted in this case that the state has proved beyond a reasonable.*203 doubt each and all of the foregoing elements of the crime charged in the information, then it will be your duty to return a verdict of guilty of murder in the first degree, so charged in the information herein.
“Everyone is presumed to intend the natural and necessary consequences of his actions. If one kills another he must, in the absence of a showing to the contrary, be presumed to have intended to kill him. So, if you find from the evidence beyond a reasonable doubt that the defendant killed Bud Dean Curtis, as charged in the information, then the presumption of law is that the defendant is guilty of murder in the second degree; and before you would be justified in rendering a verdict of murder in the first degree, the state must establish beyond a reasonable doubt the additional element that the shooting was done with a premeditated design to effect the death of said Bud Dean Curtis.”
Nothing further was said in the instructions concerning the crime of manslaughter, other than that a verdict of manslaughter was one of the verdicts the jury were warranted in returning.
The appellant complains of these instructions, we think justly. Murder in any form is the felonious killing of a human being. It is a killing without justification or excuse, yet all reference to this element is omitted by the court in its definition of murder in the first and second degrees. Under the instructions as given, the appellant could have been found guilty of murder either in the first or in the second degree, no matter how clear his justification for the killing might appear. Nor does the instruction contain any reference to the fact that there are modifications to the positive precepts there laid down. The omissions are especially harmful in the present case. The killing was admitted; the sole contention being that it was justifiable. The facts were such that the jury could have found, without a violation of its oath, that the killing was justifi
It is true that later on in its instructions the court did attempt to define justifiable homicide, but we cannot think this in any way cured the defect in the original instruction. It was given as an independent instruction without reference to the previous instruction, and consequently without indication that it was a modification of the previous instruction. Indeed, the jury were not even told that, if they found the particular killing justifiable within the principles announced, they should find the appellant not guilty. Moreover, the instruction was faulty in another respect. It announced principles, correct enough perhaps in the abstract, yet principles which had no bearing upon the facts of the particular case. A part of the instruction was as follows:
“. . . and if a man is assaulted by another, no matter how bad or violent the character of the assailant, or how menacing his actions, or how imminent the danger may have been at one time during the affray, yet if the danger, once so apparently present and actual, has ceased, or if the assailant has in good faith endeavored to withdraw from the fight and there is no longer good reason for believing that the threatened danger exists, then the assailed who kills thereafter, when there is no reasonable ground, under the circumstances, for apprehending danger at the time of the killing, would not be justified. There may be, and are, cases and affrays wherein a slayer might be justified in slaying at one time during the affray, and not having done so, the circumstances may have been so changed that a slaying later, even though during the same affray, might not be justifiable. A man who has been assaulted ever so violently and whose life may have been in ever so great a danger, but who has not struck*205 the fatal blow, and who by reason of a change in circumstances may he reasonably freed from the threatened danger, would have no right, after being thus freed from danger, to kill through motives of anger or fear, or of apprehension that at some time in the future he might he again the victim of assault.”
This, it seems to us, could easily be misleading. The language is too general to apply to any fact in the case in hand. There is in the record no evidence that the assailant had at any timq, in good faith or otherwise, endeavored to withdraw from the fight, nor is there any evidence that the killing was done through motives of anger or fear after a change in the circumstances had freed the appellant from danger. On the contrary, the evidence showed that the person killed was the aggressor in both assaults, and that he was killed while actually engaged in the second assault, and at a time when the jury could well have found that his manner and conduct indicated that his purpose was to inflict upon the appellant great bodily harm. A charge assuming that the facts were different from these was improper, and, as we have suggested, liable to a misleading interpretation on the part of the jury. It may he that the court gave the instruction because of the fact that the appellant left the scene of the affray after the first assault and returned later with a deadly weapon in his pocket. But if the instruction was intended to cover this phase of the case, the language was inappropriate. Whether this was a wrongful act upon the part of the appellant depends upon his purpose in so returning. If his intent in returning was to provoke another assault, and use that as an excuse for killing his assailant, then the killing was not justifiable. If his purpose was to pursue his ordinary business and use the weapon only in the case of an assault upon
The statute (Rem. Code, §2308; P. C. §9139) provides :
“Every person charged with the commission of a crime shall be presumed innocent until the contrary is proved by competent evidence beyond a reasonable doubt; and when an offense has been proved against Mm, and there exists a reasonable doubt as to wMch of two or more degrees he is guilty, he shall be convicted only of the lowest. ’ ’
The appellant requested an instruction couched in the foregoing language. This the court declined to give as a whole, giving only that part of it which relates to the presumption of innocence. This was error, and was not cured by the verdict returned. Manslaughter is a degree within the crime of murder, and the request was not only within the statute, but within the general rule of law.
The court gave an instruction upon confessions and
Other instructions are complained of, one of which was given at the request of the defendant. Of the first, it is sufficient to say that we find no error in them; and of the second, that it is not a matter of which the appellant can here complain.
For the errors indicated, the judgment is reversed and a new trial awarded.
Parker, C. J., Mitchell, Bridges, and Tolman, JJ., concur.