12 Wash. 349 | Wash. | 1895
Lead Opinion
The opinion of the court was delivered by
Appellant was tried in the superior court of Snohomish county upon an information charging him with the crime of murder in the first degree, for the killing of George Schultz, on the 22d day of December, 1892. A verdict of manslaughter was returned by the jury, and a motion for a new trial having been overruled appellant was sentenced to imprisonment in the penitentiary for the term of eighteen years.
The record discloses that upon the trial below no attempt was made by the state to show that appellant was present at the time and place of the killing. On the contrary, it is conceded that at the time the homicide was committed appellant was serving as a juror in the superior court of the county at the city of Snohomish, distant some ten or eleven miles from the place where the homicide was committed; and the proof upon the part of the state was confined to an attempt to show that appellant had conspired with James Robinson, George Robinson, John White and John Livingstone to commit the crime, and that the killing was done by George Robinson and John Livingstone in pursuance of such conspiracy, the theory of the state being that the appellant was an accessory before the fact.
Sec. 1189, Code Proc., provides:
“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.”
It is contended by appellant’s counsel that the evidence was insufficient to justify the conviction of manslaughter, and we think this contention must be upheld. It was conceded by the learned counsel for the state, upon the argument of the cause in this court, that if the information had charged no higher offense than manslaughter the evidence introduced would be incompetent to establish such crime.' But he earnestly contends that inasmuch as the crime of murder in the
The theory of manslaughter is unsupported by any evidence whatever, and such being the case it was improper to instruct the jury that they might find the
In Boyd v. State supra, the court say:
“Here the pleadings, it is true, put in issue the crime of manslaughter; for the indictment being for murder put in issue not only that offense, but every lower grade of homicide also, just as though there were a separate count for each. But the evidence introduced going to the crime of murder only, all the minor grades of homicide, although contained in the true bill, were, nevertheless, withdrawn or dropped, for want of proof in the issue finally submitted to the-jury.”
Such we think is the present case. The e.vidence, while proper to be passed upon by a jury in connection with the charge of murder in the first degree, became legally incompetent when considered with reference to the charge of manslaughter, a charge which admits of no accessories before the fact.
The case of State v. Greer, 11 Wash. 244 (39 Pac. 874), does not support the position of counsel for the state. The question presented here was not involved in the decision of that case, and there is a marked distinction between the cases. The indictment in the case of State v. Greer was for murder in the first degree in administering poison to the deceased. The conviction was for a lesser degree. None of the evidence upon the trial was brought to this court by bill of exceptions or statement of facts, the contention being that under the indictment a conviction could only be had of murder in the first degree. In the absence of the evidence or any sufficient statement of the circumstances relied upon for a conviction in that case, this court was unable to say that circumstances might not exist which would justify a conviction under the in
The legal effect of the verdict in this case- acquits the defendant of the higher degrees of homicide, and having concluded that the evidence is insufficient to justify a conviction for manslaughter, the judgment will be reversed and the cause remanded with instructions to discharge the appellant.
Anders and Dunbar, JJ., concur.
Dissenting Opinion
J. (dissenting).—The authorities all agree that a charge for murder in the first degree includes a charge of murder in the second degree and of manslaughter, and that an indictment for the first offense will support a conviction for either of the others. This is conceded in the opinion of the inajority of the court.
Under our statute an indictment consists of a statement of the facts which constitute the crime, in ordinary and concise language. This being so, it must follow that a good indictment for manslaughter must state facts which under the law constitute manslaughter. Hence, if an indictment charging the crime of murder in the first degree will support a verdict of guilty of manslaughter, it must be because the facts which are therein alleged to have constituted the crime of murder in the first degree also include the facts which constitute the crime of manslaughter. The only reason which will warrant the courts in holding that an indictment charging murder in the first degree also includes a charge of murder in the second degree and
The proposition above stated is not disputed by the authorities cited in the majority opinion, nor in that opinion, when considered simply as a question of pleading; but when it is considered as a question of proof it is held that killing with malice and premeditation in no degree tends to establish an unlawful kill
As I understand it, the case of State v. Greer, 11 Wash. 244 (39 Pac. 874), was decided by this course of reasoning and can be sustained on no other. The rule announced in the majority opinion in the case at bar is in direct opposition to this theory and, in my opinion, unsound. Beside, its practical application, when carried to its logical conclusion, will greatly embarrass the administration of the criminal law. If facts which tend to show that the taking of life was with premeditation and malice have no tendency to show that the crime of manslaughter has been committed, then, upon a conviction for manslaughter, where the indictment charged a higher degree of homicide, it will he the duty of the court to set aside such verdict, however much testimony there may be
It is a well known fact that juries are usually inclined to return verdicts for a less degree of homicide than those charged in the indictments, even when the most of the evidence has tended to establish the degree charged, and if every conviction of a lower degree is to be set aside where the testimony which tends to show that degree, without the aid of that which tends to show a higher, is not sufficient to support the verdict, the most of such verdicts must be set aside; and since the law probably is, as intimated by the majority; that the rendition of such a verdict is equivalent to a verdict of not guilty as to the higher degrees covered by the indictment, the result will be that but few of those who are really guilty of some degree of felonious homicide will be punished for the crime.
There is another ground upon which the veridict under consideration can be sustained. The proof tended as strongly to show that the object of the conspiracy was to prevent, by the use of unlawful means if necessary, the traveling of the road known as the “White road,” by the persons who were killed, as that it was for the purpose of securing their death. Hence, for the purposes of this case, it should be assumed, if necessary to support the verdict of the jury, that they found that the conspiracy into which the defendant with others had entered was the doing of an unlawful act, and not the commission of murder;.and while this would not relieve him from responsibility for all acts done in furtherance of the objects of the conspiracy, he would, under such a state of facts, be guilty of
In my opinion the verdict was supported by the proofs. The judgment and sentence should be affirmed.
Scott, J., dissents.