*1 21, 1974.] En March Banc. [No. Byron Respondent, of Washington, v. Charles
Rogers, Petitioner. Charles Byron Rogers, pro se, and Wesley G. Hohlbein and Robert L. Butler, for petitioner (appointed counsel for appeal). T.
Christopher Bayley, Prosecuting Patricia Attorney, G. Barber, Assistant and Charles Deputy, Yates, E. Dep- Chief uty, for respondent. J. Defendant Rogers petitioned
Utter, view the the Court proceedings Appeals which, in an affirmed a opinion, judgment unpublished guilty mur- in the second The issue degree. presented der is whether a to commit murder general presumed from Rogers and used unlawfully mortally kill an- other. We hold such
used, but verdict. affirm *2 The facts as the could have found them these. D. resided in decedent, Williams, Defendant the Robert County, Washington. respective King Their resi- Duvall, from one another on Fourth dences were across relationship defendant and Williams Avenue. The between prior the defendant had made threats had deteriorated and of violence to Williams. evening January 1970, defendant,
On the who had City parked drinking, upon returning from Fall his Avenue near his house. truck out in the street Fourth neighbor daugh- evening a Mr. Later drove Williams’ sitting Vicki, to in ter, her home. She saw the defendant his problem. inquired He truck and whether he had denied any neighbor get having problem and told the back into gun driveway. in defendant’s truck her own Vicki saw a by experience. neigh- frightened the entire and became telephoned to her where then drove Vicki home Vicki bor parents parents told what her to come her. She her gun. told occurred and that she seen Williams his daughter Meanwhile, the sheriff. defendant drove call away in his truck. in truck while, Williams left his to find defendant
After ultimately to him, but was unsuccessful. He and talk leaving parked his in truck the street. home, turned De- driveway. left it was his fendant claimed Some- house, his he entered noticed the de- time after Williams coming Fourth down Avenue and truck was that fendant’s go stopped decided street. Williams out and talk the defendant. door he out his was walked unarmed. As Williams voice, hear a loud not her Shortly father’s, Vicki thereafter rapidly gunshots. It devel- sound followed had shot Williams five times. When oped defendant coming offhis fence. stopped, was Williams Defendant come off the fence claimed Williams had threatening proceeding to kill him. The toward him jury rejected Defendant defendant’s claim self-defense. neighbor neighbor’s his to a house and told the drove truck he had shot Williams and call sheriff. When spent arrived, found a .22 caliber revolver and officers casings on the floor of The revolver was defendant’s truck. weapon against used Williams. case is similar to but different from State v.
This issue to commit a crime of vi- was whether presumed proven olence from the defendant was armed with an unlicensed in a complaint alleging first-degree assault. There we held that no arose such a case because it could not be shown specific reasonable doubt that the grievous bodily
intent to commit murder cause possession *3 harm, fact, followed from the of an unli- handgun. censed objected jury
The to the trial court’s instruc- 11, tion No. which stated: person You are instructed that in the trial of a for
committing attempting or to commit crime of violence, fact that he was armed with and had no prima license to the same shall be facie evidence of pre- his intention to commit said crime of violence. The sumption binding upon you, thus created not is but only given weight you should be merit. This you such seems to presumption permits, way in no directs, but to convict the accused, and must be considered you upon throughout light presumption of the of innocence which arises plea guilty accompanies of not the accused the trial until overcome evidence which you guilt beyond convinces of the accused’s a reasonable doubt. jury complained Odom, the
As in instruction of argues 9.41.030.1Defendant that the here is based RCW 9.41.030: 1RCW “Being intent. the trial of a committing attempting person violence, commit a 556 jury
presumption contained in No. 11 is irra- instruction arbitrary consti- it, therefore, tional and and that violates his right against process tutional self-incrimination and due protected fifth law, under the and fourteenth amend- ments to the United For reasons States Constitution. fully supra, more set forth in State v. we hold that murder, commit has not shown follow the reasonable doubt fact alone that the defendant here was armed handgun. an therefore erred The allowing 11 on of intent. instruction No. supra. Accordingly, State v. 9.41.030 is RCW upon rights of the intrusion defend- protected ant, the fifth and under fourteenth amendments Leary to the v. United States, States Constitution. United (1969), 57, Ct. 6, 395 23 L. Ed. 2d 1532 Turner v. U.S. 89 S. States, 398, 610, United 24 L. Ed. 2d Ct. 642 396 U.S. 90 S. (1970) Winship, 368, In re 25 L. Ed. 2d 90 previous (1970) not our Ct. 1068 discussed in cases. S. previous helpful not reason, For our cases are in re- solving To the the issues discussed in Odom. extent that Person, 352 A.L.R.2d State v. 56 Wn.2d P.2d 81 (1960), Thomas, 58 P.2d State v. Wn.2d 364 930 (1961), (1963), P.2d Thomas, v. Gregory, (1971) 637, holding here, in conflict with our are over- others are ruled. submitting
Notwithstanding trial court’s error in- jury, conviction below 11 to No. struction testimony introduced at trial uncontroverted stand. shooting, time of the defendant that, at the *4 revealed security of his truck on within was seated property abutting the and decedent’s public vantage point the defendant five shots into from yard. fell dead in his own who front decedent unarmed had no license to’ that he was fact of his intention to commit said be shall same of violence.” An accused cannot avail himself of error as a ground prejudi for reversal where the error has not been cial to White, him. State v.
(1967).
regarded
Error cannot
harmful
to re
so as
quire
probabilities,
unless,
reversal
within reasonable
might
the error not occurred, the result
have been materi
ally
complaining
more favorable to the
of it. United
one
(9th
1969).
v. Walton,
States
Accordingly, finding guilt court’s on the charge degree of murder in the second is affirmed.
Finley, Rosellini,
Wright,
Hunter,
JJ., concur.
(concurring
result)
Hale, C.J.
concur in the
—I
result, but would hold RCW 9.41.030constitutional for the
my concurring
dissenting opinion
reasons stated
(1974).
Odom,
Brachtenbach, Stafford, concurs with rehearing denied June Petition for