Gray v. State

Citation463 P.2d 897
Decision Date16 January 1970
Docket Number1005,Nos. 1003,s. 1003
PartiesDewey Spencer GRAY, Willie Lee Gray, Jr., Appellants, v. STATE of Alaska, Appellee.
CourtSupreme Court of Alaska (US)

James R. Clouse, William H. Fuld, Anchorage, for appellants.

Douglas B. Baily, Dist. Atty., Kenneth Jarvi, Asst. Dist. Atty., Anchorage, for appellee.



BONEY, Justice.

After a jury trial in the superior Court, appellant, Dewey Spencer Gray, was convicted of two counts of first degree murder in violation of AS 11.15.010 for the killing of Benjamin F. Strong on January 4, 1968. One court was based on the felony murder theory and the other court was based on the theory of premeditated murder. As a result of these convictions, Dewey Spencer Gray was sentenced to serve two life sentences to run concurrently. From the judgment, this appeal is taken.

At the same trial, appellant, Willie Lee Gray, Jr., was convicted of one count of first degree murder in violation of AS 11.15.010 and one count of second degree murder in violation of AS 11.15.030 for the killing of Benjamin F. Strong on January 4, 1968. The first degree murder count was based on the felony murder theory and the second degree murder count was based on an intentional killing theory. As a result of these convictions, Willile Lee Gray, Jr., was sentenced to serve two life sentences to run concurrently. From the judgment, this appeal is taken.

On the evening of January 4, 1968, Benjamin F. Strong, an Anchorage city police officer, was on stake-out duty at a Brown Jug Liquor Store in Anchorage. He was not in uniform because he had volunteered for the assignment on his own time. Strong concealed himself in a storeroom in the store. One of the swinging doors to the room was off its hinges, and therefore, Strong stacked cardboard boxes on both sides of the door to support it. He remained on stake out for several hours. He was armed with his own .45 automatic and a .12 gauge shotgun loaded with .00 buck.

At approximately 11:00 p. m., Dewey Gray, brother of Willie Gray, entered the back of the store. When he entered, Dewey held a .25 automatic in his hand and wore a ski mask. The clerk on duty was Ruth McCoy. There was no one else in the store (except, of course, for the hidden officer). Miss McCoy was told by Dewey to turn off the lights and lock the doors. She did not turn off all the lights. She stated 'the lighting was-I cannot remember exactly which lights were on, I recall that the lighting was adequate to see, I had no difficulty in seeing either inside or outside the store.' As she was walking to the front door to lock it, Willie Gray came in the front door. Willie went to the cash register and started removing the money. Willie was not armed and had little to do with Ruth McCoy. While Willie was emptying the cash register, Dewey took Miss McCoy to the bathroom near the rear of the store. There Dewey tied up Miss McCoy, who knelt on the floor. Willie stayed at the register. After Dewey had completed tying Miss McCoy, he picked up his gun and started to walk back to where Willie was, and Willie started to leave. Then 'in one sequence or another I'm not exactly sure which', Miss McCoy heard boxes tumbling to the floor, heard unidentifiable shouts of more than one voice, but could not discern any words at all. She heard a shot or shots. At some time she turned around and saw Willie shot. She then kicked shut the door to the bathroom and got out of the way. Then she heard 'Brown Jug Library hold up' and the phone clattering to the floor. After waiting a while she came out of the bathroom and called the police. The Grays were gone, and Officer Strong was dead.

At trial Dewey elected to testify and admitted that Miss McCoy's description was correct up to the point of being tied up. Dewey stated that after he finished tying up Miss McCoy he turned to leave; Willie was in front of him and was also leaving. Then Dewey heard the sound of boxes falling in the stockroom. As he turned he saw Officer Strong stumbling, crouched on his knees, and firing his .45. The shots were in rapid sequence. Dewey heard no one speak. He saw Willie shot and saw him fall to his knees; he then heard more shots, and at each shot Willie flinched as if hit. It was later stipulated that Willie was shot once in the back of the leg. While looking at Willie, Dewey was shot in the leg, which spun him around and dropped him to his knees. Then 'out of reflex and fright' he 'threw up a shot too', without aiming, and was immediately thereafter shot again in the shoulder. This second shot caused him to pass out momentarily. Dewey later stated that he did not know who Officer Strong was, that he thought Willie was dead and he would, himself, be killed. When he regained consciousness Dewey crawled to his car and drove home. Once home he told his wife to call the police because he had been shot; she evidently did this. Meanwhile, Willie had managed to escape on foot, and was found later at a friend's apartment.

At the trial of these cases it was the state's theory to link up the defendants with the crime by means of the clothing worn by the defendants, the car driven by Dewey Gray, the fact that both defendants had been shot by a .45 automatic, Miss McCoy's identification of the gun used by Dewey Gray, and several witnesses placing the Gray brothers near the scene of the crime on the night in question, January 4, 1968. The store clerk Ruth McCoy, could not identify the defendants directly. The defense vigorously contested the introduction of the items of circumstantial evidence. However at the end of the trial, Dewey Gray testified and obviated most of the bitterly fought evidentiary points. Apparently, Dewey testified in order to bolster the defense's theory of the right of self-defense during an illegal arrest. Dewey admitted the robbery and shooting Officer Strong.

The appellants assign as a principal error on appeal the trial court's instructions 20 1 and 21 2. The trial court instructed the jury in instruction 20 that felony murder is first degree murder if the killing was intentional, unintentional or accidental. The court in the next instruction (No. 21) told the jury that the essential elements of felony murder to be proved beyond a reasonable doubt are that defendants did unlawfully, feloniously and purposely kill Officer Strong. The relevant statute reads as follows:

AS 11.15.010 First degree murder. A person who, being of sound memory and discretion, purposely, and either of deliberate and premeditated malice or by means of poison, or in perpetrating or in attempting to perpetrate, rape, arson, robbery, or burglary kills another, is guilty of murder in the first degree, and shall be sentenced to imprisonment for not less than 20 years to life.

Murder, at common law, was defined as the unlawful killing of a human being with malice aforethought, either express or implied. Express malice could be found in the deliberate intention of the defendant to take the life of the deceased unlawfully, while implied malice could be found either where the evidence showed circumstances indicating that the defendant had a heart regardless of social duty, in that he knowingly did an act which might result in death or grievous bodily harm, or where defendant killed another in the course of perpetrating a felony. In all of these instances it did not matter whether the defendant actually intended to kill the deceased. Once malice could be found, the defendant could be held liable for all results which flowed naturally and probably from his volitional acts. In many cases the killing itself, if unexplained, was enough to support an inference of malice.

The Alaska statutory definition of murder in both the first and second degree, adopted in 1899, involved a significant alteration of the common law concept of the crime. The statutes state that no homicide can be murder unless it is purposely done. A plain reading of the first degree murder statute, AS 11.15.010 reveals that whether a killing is effected either of deliberate and premeditated malice or by means of poison, or in perpetrating or in attempting to perpetrate any rape, arson, robbery or burglary, it must in all of those cases be purposely done. Were it otherwise, the word 'purposely' would have been placed within one of the disjunctive connective clauses instead of before them. The second degree murder statute, AS 11.15.030 3, merely states that whoever purposely and maliciously kills another under circumstances not amounting to first degree murder is guilty of murder in the second degree.

In addition to the plain grammatical meaning of the Alaska first degree murder statute there are authoritative judicial interpretations of that statute which state emphatically that a specific intent or purpose to kill is an essential element of the crime charged. These are the decisions of the Supreme Court of Ohio, from which the Alaska murder statutes were adopted. Jones v. United States, 175 F.2d 544, 550 (9th Cir. 1949), reveals that AS 11.15.010 was taken directly from the Ohio homicide statute in existence in 1897. Later the same provision was adopted from Alaska by Congress for the District of Columbia. 4 This is one of the few of our original statutes not adopted from the laws of Oregon. Congress is presumed to have adopted the construction of the statute which had been put on it by the courts of the state of its origin. 5

The leading Ohio case construing this statute is Robbins v. State, 8 Ohio St. 131 (1857). The defendant in that case had administered poison to his mistress in order to produce an abortion, in consequence of which she died. Appeal was taken from the trial court's instructions that a purpose or intent to kill the victim was not necessary to constitute murder in the first degree where the death was caused by poison. The statute, Rev.Stat. 1854, § 269, involved was identical to the Alaska first degree...

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