67 Wash. 192 | Wash. | 1912
The appellant, together with one Hannah Beebe, was charged by an information, filed in the superior court of Chelan county, with the crime of murder in the first degree, for having, on August 10, 1910, in that county, shot and killed one James E. Sutton. The accused were awarded separate trials; and on the trial of the appellant, the jury found here guilty of murder in the first degree, as charged in the information. On the verdict of guilty, she was adjudged guilty and sentenced to imprisonment in the penitentiary for the term of her natural life. From the judgment and sentence, she appeals.
The facts leading up to the homicide are not seriously in dispute. On August 10, 1910, and for about ten years prior thereto, Hannah Beebe, who is the mother of the appellant, owned and occupied a tract of land originally containing one hundred and sixty acres, situated some five miles southwest of Cashmere, in Chelan county, in what is known as Brender canyon. Some time prior to August 10, Mrs. Beebe had sold to the appellant a three and one-half acre tract out of the west side of her one hundred and sixty acre tract; and the appellant, together with her husband and son, lived thereon, the husband owning other lands adjoining this- tract lying to the west of Mrs. Beebe’s land. The houses of the respective parties were but a few rods apart, and were located perhaps an eighth of a mile south of the northwest corner of Mrs. Beebe’s original tract. To the west of Mrs. Beebe’s land, was the land of James H. Sutton, who lived upon it with his family, consisting of his wife and six boys and four girls; one of the boys being James E. Sutton, who was killed as before stated. The Sutton land was at the head of Brender canyon, which maintained' a northeasterly course through this tract as well as the tract owned by Mrs. Beebe. Mr. Sutton also owned a forty-acre tract lying immediately to the
For some time prior to August 10, 1910, there had been ill feeling between the Sutton family and the appellant, arising from various causes, and between the Sutton family and Mrs. Beebe over the use of this private way; and on the 9th of August, Mrs. Beebe built a wire fence across the way, a short distance above the point where the road from her house connected therewith. The fence did not complete an inclosure, nor did it connect with any other fence Mrs. Beebe had upon her premises, but was intended to block the private way, and as an assertion of her rights to the land over which the road passed. Near the fence she placed a sign containing the words, “No Trespassing.” That night the sign was demolished and the fence torn down where it crossed the way, as it developed on the trial, by some of the members of the Sutton family.
On the next morning, Mrs. Beebe drove to Cashmere for
Some time later, perhaps about three o’clock in the afternoon, the elder Sutton drove down the road from his home with a load of wood, and seeing the fence across the road and the appellant and her mother sitting near it, stopped his team and came down to them. In the discourse which followed he was told that he could not go through, as the road was closed, and thereupon he returned to his team, pulled his load to one side of the road, unhitched his team and returned home with it. Shortly afterwards James E. Sutton, with his sister Nettie, some two years his senior, and his two younger brothers, aged fourteen and eleven years respectively, drove a single horse hitched to a buggy or hack down the road to the fence, stopping the horse some ten feet therefrom. Young Sutton immediately jumped out of the buggy and proceeded to cut the fence where it extended across the road, by putting the blade of an axe beneath a wire and striking on the wire with a hammer. As soon as he began cutting the wires, Mrs. Beebe arose and hastened down to the road, telling him not
While this was going on, the appellant arose, picked up the gun which had theretofore remained out of sight, and approached the road. The happenings from then on are in dispute, but Nettie Sutton testified, and in this she is supported in a measure by her two brothers, that the appellant called to her brother, saying that she would shoot him if he did not cease cutting the wire; that her brother’s back was towards the appellant, and without looking towards her, he answered that if she shot him he would hit her with the hammer; that immediately after he had cut the last wire, the appellant called to her mother telling her, “to stand aside and she would shoot him;” that her brother turned at that moment, and seeing the appellant, who had then reached within about ten feet of the road, with the gun pointed at him, dodged towards a stump which stood by the road immediately to his right in an attempt to get the stump between himself and the gun. He only partially succeeded — the appellant herself saying that he was far enough behind it “so that I couldn’t hit him in the legs” — and was shot by the appellant in the neck, dying almost instantly. Mrs. Totten testified that, at the time she shot young Sutton, he was advancing towards her with the hammer raised above his head in an attempt to strike her, and that she shot him in self-defense.
The assignments of error all go to the rulings of the court on the admissibility of evidence, and to the court’s charge to the jury.
In her direct examination, the witness Nettie Sutton testified that the road across which the fence had been constructed by Mrs. Beebe was the only way from the Sutton home to the forty-acre tract and to Cashmere. On cross-examination, she modified the statement by saying that it was the only way
The appellant’s counsel argue the admissibility of this evidence on several grounds. It is contended, first, that it was admissible for the purpose of contradicting the state’s witness Nettie Sutton; and second, that it was admissible as bearing upon the state of mind of the appellant at the time she committed the homicide. It is argued, also, that the evidence on the part of the state tended to show that the bíocking of this road shut the Sutton’s off from their home,
But we think none of these reasons require the admissions of the rejected evidence. If it were material to contradict the witness Nettie Sutton on the matter mentioned, it will be noticed that the proofs offered do not have that tendency. In the first place, the record makes it plain that the witness was referring to traveled ways, not the possibility of driving a team through the timber and over the underbrush between the points mentioned. Again, to go over the route described would not avoid the use of the fenced way entirely. It would simply have enabled the one pursuing it to pass around the fence, thus avoiding the use of the road for a few rods only; and to show this fact does not contradict in any material degree the statement that the fenced road is the only road between the points concerning which the witness testified. Evidence contradicting the statement of an opposing witness, to be admissible on that ground alone, must relate to some material matter; it must relate to the substance of the evidence, not to its mere technical accuracy.
Nor does the second ground stated require the admission of the evidence. It must not be forgotten that the appellant was not representing any right of her own by her presence at the time of the homicide. She was there solely as an assistant to her mother, and her mother makes it plain in her own testimony given on behalf of the daughter, that her purpose was to close the road to the Suttons for its entire way through the land, not merely that portion across which
The third branch of the contention is untenable on like grounds. Mrs. Beebe herself, as we say, made it plain that she intended by the fence and her protests to both the elder and younger- Sutton to forbid them the use of the entire way, and the jury could not have inferred from the mere fact that she had left it possible for a wagon to be driven over the land, that she did not intend to cut them off entirely. Moreover, the state admitted on the trial, and the court charged the jury, that Mrs. Beebe acted wholly within her rights when she fenced the way in question. The jury were also charged that the person killed and the other members of the Sutton family were unlawfully trespassing on her property at the time of the homicide, and that the destruction of the fence was an unlawful act which Mrs. Beebe, and through her the appellant, had the right to resist to any degree short of taking human life, or the infliction of dangerous bodily harm. No additional light on the tragedy would have been thrown by the admission of the rejected evidence, and we find no reversible error in the court’s ruling.
The appellant further offered to show by the husband of the appellant, that he, as the representative of Mrs. Beebe, sometime prior to the homicide, had visited the Suttons and told them that a certain gate in a fence extending across the road different from the one in question had been locked, that the key was with Mrs. Beebe, and that any time that
The same answer can be made to the offer to show that Mrs. Beebe had offered
The appellant offez'ed to show that, at vaz'ious times prior to the August 10, 1910, the appellant had expressed to her husband fear of cez’tain members of the Sutton family, paz’ticularly James H. Sutton and James E. Sutton; that she was afraid they would do her bodily injury, particularly in the nighttime, and was afraid they would do bodily injury to the witness, her husband. The statements and declarations of the accused in her own favor, unless they are a part of the res gestae, or unless made evidence by the prosecution in producing conversations in which they are contained, are inadmissible as evidence on the part of the accused on
The court, among others, gave the jury the following instructions :
“I now direct your attention to the crime of manslaughter, which is included within the crimes charged in the information ; and I instruct you, as a matter of law, that if you are satisfied beyond a reasonable doubt from the evidence, that the defendant, Della Totten, did shoot and kill the deceased, James E. Sutton, in the manner alleged in the information, in this county and state, and further find that such killing was not purposely done and was not done upon deliberation and with a premeditated design to effect the death of deceased, but was done by the defendant without any design to effect his death, and that it was done either voluntarily upon sudden heat or involuntarily but in the commission of some unlawful act and are satisfied beyond a reasonable doubt that it was not in self-defense, then your verdict should be that the defendant is guilty of manslaughter. In order to reduce voluntary homicide to the grade or degree of manslaughter, it is necessary, not only that adequate cause exist to produce a degree of anger, rage and sudden resentment or terror sufficient to render the mind incapable of cool reflection, but also that such a state of mind did actually exist at the time of the commission of the offense.
“The court instructs you, as a matter of law, that if a homicide, that is, the killing of one human being by another, is proven beyond a reasonable doubt, as explained to you, the presumption of the law is that it is murder in the second degree; and, if the state would elevate it to that of murder in the first degree, it must establish all the statutory characteristics of murder in the first degree from the evidence and beyond a reasonable doubt; that, on the other hand, if the defendant would reduce it to manslaughter, or justify it, the burden is upon the defendant so to do. This burden on the defendant is sustained, if, from all the evidence in the case, or want*203 of evidence in the case, you entertain a reasonable doubt as to the defendant’s guilt.
“You are further instructed that the law presumes the innocence of a person accused of crime and this presumption is not a matter of form merely, which the jury may disregard at pleasure, but is a part of the law of the land and is a right guaranteed by that law to every person accused of crime; this presumption of innocence continues with the defendant throughout all the stages of the trial and until the case has been finally submitted to the jury and the jury has found that this presumption has been overcome by the evidence of the prosecution in the case, beyond a reasonable doubt as to each and every material fact.”
It is objected to the first instruction that it is confusing, inasmuch as it does not sufficiently distinguish manslaughter from murder in the second degree; the precise contention being that the terms “voluntarily” and “involuntarily” as used in the instruction were capable of a varied meaning. But we think the instruction free from fault in this regard. The statute, it will be remembered, defines manslaughter by words of exclusion, rather than by words of inclusion. It first prescribes that homicides committed in certain ways shall constitute murder: in the first degree, next that homicides committed in certain other ways shall constitute murder in the second degree, and then prescribes that all homicides committed in ways other than there specified, not being excusable or justifiable, shall be manslaughter. The court was therefore compelled to resort to a somewhat circuitous method of making clear to the jury the acts constituting manslaughter, and in doing so we do not think he misused the particular terms complained of, or that such terms are not in such common use as to be readily understood by jurors without further definition.
The second instruction is objected to, “because,” to use the words of counsel, “its effect is to tell the jury that before the burden of reducing the homicide to manslaughter is sustained by the defendant the jury must entertain a reasonable doubt of the defendant’s guilt.”
“A substantially similar instruction was considered and sustained by this court in State v. Payne, 10 Wash. 545, 39 Pac. 157, on the authority of State v. Cairn, 20 W. Va. 679, 709; Hill v. Commonwealth, 2 Grat. 594, and other cases cited in the opinion, and 2 Thompson, on Trials, § 2208. This instruction is an exact copy of the form of an instruction given by Thompson in the section of his work on trials above noted; and the learned author, in a footnote to said section, says that, ‘The principle embodied in the above instruction is believed to be universally acknowledged.’ ”
The precise objection now urged against the instruction was not-made in the case cited', but we think the instruction without error nevertheless. The natural and obvious meaning of the language used is directly contrary to the interpretation put upon it by the appellant, and we think the jury could not have misunderstood the instruction.
To the third instruction counsel made the following criticism :
“The error in this instruction is that it virtually instructs .the jury that the presumption of innocence could be overcome if they believed the evidence of the prosecution in the case and excludes them from inquiring into the question as to how far the testimony on the part of the prosecution was modified or neutralized by that produced by the defendant, or what inference should be drawn from any of it.”
We think the criticism unjust. It is true, the instruction does not contain the modification suggested by counsel, but it is not practicable for the court to incorporate in each paragraph the exceptions and modifications of the general rules there announced. It is sufficient if the charge as a whole contains these modifications. Elsewhere in its charge, in this instance, the court made it clear to the jury that the whole of the testimony bearing upon any particular fact must be considered by them in arriving at a conclusion as to such fact.
Mount, Parker, and Gose, JJ., concur.