State v. Anderson

• Citation: 10 Wn.2d 167,116 P.2d 346
• Decision Date: 22 August 1941
• Docket Number: 28311.
• Parties: STATE v. ANDERSON.
• Court: United States State Supreme Court of Washington

116 P.2d 346

10 Wn.2d 167

STATE v. ANDERSON.

No. 28311.

Supreme Court of Washington

August 22, 1941

Department 1.

John Bruce Anderson was convicted of murder in the first degree and he appeals.

Affirmed.

Appeal from Superior Court, Spokane County; Louis F. Bunge, judge.

Harold M. Gleeson and Lucius G. Nash, both of Spokane, for appellant.

C. C Quackenbush and R. Max Etter, both of Spokane, for respondent.

BLAKE Justice.

On information filed by the prosecuting attorney of Spokane county, the defendant was charged with the crime of murder in the first degree in that, 'on or about the 13th day of July, 1940,' he 'did * * * willfully, unlawfully and feloniously, without excuse or justification and with a premeditated design to effect the death of one David Johnson, and while engaged in the perpetration and attempt to perpetrate the crimes of burglary and robbery, kill and murder said David Johnson in a manner and by means unknown to the Prosecuting Attorney.' (Italics ours.)

He was found guilty, as charged by a jury, which imposed the death penalty. From judgment and sentence entered in accordance with the verdict, he appeals.

The appeal presents four major questions for determination: (1) Was the state's proof of the corpus delicti sufficient to take the case to the jury? (2) Should the court have instructed on murder in the second degree and manslaughter? (3) Was evidence of a burglarious entry of deceased's dwelling by appellant on May 29, 1940 admissible? (4) Did the court err in denying appellant's motions to make the information more definite and certain and for a bill of particulars?

First. The deceased Johnson lived on an eighty-acre farm, which he owned, six or seven miles southwest of Spokane. He was thrifty and well-to-do, having a checking account of several hundred dollars and a savings account of three thousand dollars in the Old National Bank and Union Trust Company of Spokane.

For several months prior to July 13, 1940, appellant 'camped' in the vicinity of the Johnson place. About July 28th, he broke camp and went to Yakima. He was taken into custody at a ranch near Toppenish on August 28th. When apprehended, he had in his possession several of Johnson's personal belongings, notably a marriage license, patents and deeds to property, a check book, savings account book, and letters to Johnson from his daughter.

He admitted the killing of Johnson and, on August 29th, signed a confession circumstantially describing the murder, the disposal of Johnson's body, and his own subsequent acts and movements. The highlights of the confession are:

That he had been in the habit of going to Johnson's place every night for the purpose of stealing eggs; that he always took his gun, a .38 Ivor-Johnson revolver, with him 'for protection'; that he 'figured on using it' if he 'would have to'; that, on the night of July 20th, he took his gun and went over to Johnson's and entered the barn where the chickens were kept, but found no eggs; that he heard the screen door of the house, which was a hundred yards away, open and realized Johnson was coming; that he ran out of the barn and hid in some bushes nearby; that Johnson entered the barn and then came out and began searching the ground for tracks with a flashlight; that Johnson came toward him with the flashlight in one hand and a revolver in the other; that he trained his gun on Johnson when the latter started toward him, at a distance of about ten paces; that he called to Johnson to drop his gun; that Johnson and he fired at the same instant 'and [he] shot him through the heart'; that he then took the body to the house and put it in the cellar, first bringing the 'legs up against his chest,' because he knew 'probably rigor mortis would settle in' Before he could 'take him away and it would be hard to put him in the car'; that the next night he went back and got the body and drove to Newport, where he threw it in the Pend d'Oreille river; that he then 'went on back to Spokane,' but, having no money, he went ' over to Coeur d'Alene,' where he sold Johnson's revolver for five dollars;

That, on Monday, July 22nd, he went back to Johnson's place and made a search, hoping and expecting to find money; that, finding none, he then ' went to Coeur d'Alene and sold that gun'; that Johnson had a .410 shotgun, which he, after the murder, 'peddled at Spokane--on Main Avenue between Brown and Bernard--a kind of sporting goods and radio store'; that he drew checks on the checking account standing in the name of David Johnson in the Old National Bank and Union Trust Company; that, representing himself as David Johnson, he listed the Johnson ranch for sale; that he went to Yakima, representing himself to be David Johnson; that, as such, he drew drafts to the amount of fifteen hundred dollars on the Johnson savings account in the Old National Bank and Union Trust Company, the proceeds of which he deposited in the Yakima branch of the National Bank of Commerce of Seattle under the name of David Johnson; that, as David Johnson, he drew checks on that account; that, in connection with the attempt to sell the Johnson ranch, he executed an affidavit identifying himself as the David Johnson who owned the ranch; that, assuming the name of David Johnson, he rented a postoffice box at Selah.

In challenging the sufficiency of the proof of the corpus delicti, appellant first complains that the confession was admitted in evidence Before the corpus delicti was established.

It is a well-settled rule of practice that the corpus delicti must be established Before the admission of evidence linking the defendant with the crime charged. This rule, however, has a certain practical and well-recognized limitation, which is stated in 1 Wharton's Criminal Evidence, 11th Ed., 235, § 210, as follows:

'But in many cases, the two matters are so intimately connected that the proof of the corpus delicti and the guilty agency is shown at the same time. Hence, the order of proof in a criminal case is generally within the discretion of the trial court, and this prevails so generally that error committed in admitting testimony as to the guilt, Before the proof of the corpus delicti, is cured where the subsequent testimony sufficiently establishes the corpus delicti.'

That counsel for the state meticulously observed the rule within all practical limitations, is apparent from the facts which we shall now relate.

Although the corpus delicti cannot be established by confessions and admissions of the defendant standing alone, it is to be borne in mind that they may be considered for that purpose, together with other facts and circumstances tending to prove the corpus delicti. State v. Coates, 22 Wash. 601, 61 P. 726; State v. Scott, 86 Wash. 296, 150 P. 423, L.R.A. 1916B, 844; State v. Gray, 98 Wash. 279, 167 P. 951; State v. Marcy, 189 Wash. 620, 66 P.2d 846; State v. Stuhr, 1 Wash.2d 521, 96 P.2d 479. See, also, State v. Anderson, 132 Wash. 130, 231 P. 456.

To begin with, a thorough search of the Pend d'Oreille river failed to discover a body. In the meantime, it was learned that, about three o'clock in the morning of July 16th, a hay barn located between half a mile and a mile to the west of the town of Athol, Idaho, burned to the ground. Athol is twenty miles north of Coeur d'Alene and about thirty to the south of Newport. The barn was about half a mile to the north of the main highway, but only one hundred yards from a road that connected with the main road between Athol and Newport. (In 1938, appellant had lived for several months on a ranch some ten or twelve miles north of Athol.) By a witness who observed the fire from Athol, it was described as bursting out as by an explosion.

On July 17th, while the fire was still smouldering, a lieutenant of the Idaho state police examined the ruins and found in one corner the form of a human body. He testified: 'Well, the human body was all there so far as the bones were concerned. The flesh has been burned almost entirely away. There was a small part of the torso remaining, and I noticed the skull and the entire portion of the body.'

He reported the discovery to the coroner, a practicing physician of Coeur d'Alene, who, with a deputy sheriff, went out to investigate and remove the remains. Incineration had been so complete, however, that the bones disintegrated when touched. Some teeth and a portion of the torso were all that could be moved. In sifting the ashes, however, the searchers found midriff of the body's position a belt buckle engraved with the initial 'D.'

Appellant contends that, conceding the remains found were those of a human being, the proof falls far short of establishing that they were those of a male, much less the remains of David Johnson.

The coroner testified that, in his opinion, the remains were those of a man. The belt buckle was described by Johnson's son in accurate detail Before it had been shown to him. Later, when it was shown to him at the trial, he identified it as belonging to his father and related the circumstances under which his father had purchased it. A neighbor of the deceased's and Johnson's daughter also identified it. Enlarged kodak pictures of Johnson, admitted in evidence, show him wearing a belt. In one, the letter 'D' on the belt buckle can be clearly seen.

But this is not all the proof relating to the corpus delicti. While the following evidence directly tends to connect the appellant with the crime, it also goes to establish the corpus delicti. Johnson's revolver was sold by appellant in Coeur d'Alene on July 15th, instead of July 22nd as stated in his confession. When confronted with this fact appellant admitted the murder must have occurred on July 13th, instead of July 20th. When told of...