State v. Barton

Decision Date26 August 1940
Docket Number27938.
Citation105 P.2d 63,5 Wn.2d 234
CourtWashington Supreme Court

Department 2.

George F. Barton was convicted of robbery, and he appeals.


A competent physician, duly qualified as an expert, may testify that, in his opinion, a particular wound could have been caused by a particular instrument.

Appeal from Superior Court, King County; William J. Wilkins, judge.

Hugh Miracle and Carl B. Luckerath, both of Seattle, for appellant.

B. Gray Warner, Leo W. Stewart, and Patrick M. Tammany, all of Seattle, for respondent.

DRIVER Justice.

By information, George F. Barton was accused of murder in the first degree, in that he did, while '* * * engaged in committing, attempting to commit or in withdrawing from the scene of the commission of a felony, to-wit: Robbery wilfully, unlawfully and feloniously * * * beat, touch strike and wound one Henry Dorsten, a human being, with an iron water pipe * * * thereby mortally wounding the said Henry Dorsten, from which said wounds the said Henry Dorsten languished and died * * * .'

The information was based upon Rem.Rev.Stat. § 2392, the pertinent parts of which are as follows:

'The killing of a human being, unless it is excusable or justifiable, is murder in the first degree when committed either----
'1. With a premeditated design to effect the death of the person killed, or of another; or, * * *
'3. Without design to effect death, by a person engaged in the commission of, or in an attempt to commit, or in withdrawing from the scene of, a robbery, rape, burglary, larceny or arson in the first degree; * *.'

The trial resulted in a verdict of acquittal.

Thereafter, in the case at bar, George F. Barton was charged with the crime of robbery by an information in which it was alleged that the defendant, '* * * by force and violence to the person of one Henry Dorsten and by putting said Henry Dorsten in fear of injury to his person and against his will, did then and there take from the presence of Henry Dorsten certain personal property of value to-wit: money, * * *.'

Both informations referred to the same robbery of Henry Dorsten and to the same acts of the defendant in connection therewith.

The defendant entered, in writing, a plea of not guilty joined with a special plea of former acquittal. The special plea alleged, in substance, that defendant had been accused of murder in the first degree in the prior case, had been acquitted, and that such acquittal was a final judicial determination and res judicata as to all matters and facts set forth in the information in the case at bar; that the defendant had not tendered any issue in the former prosecution regarding the death of Henry Dorsten as the result of an assault upon him, as stated in the information, the sole defense presented and decided being that the defendant was not present at the time and place of the crime, namely, the defense of alibi, and that, therefore, the fact that defendant was not so present and did not participate in any assault upon Henry Dorsten was res judicata; and that, by the verdict and judgment in the prior prosecution, defendant was, in effect, acquitted of the same offense of which he is accused in the present case.

The state's demurrer to the special plea was sustained.

Defendant then, with leave of court, filed an amended special plea, which differed from the former plea only in alleging in greater detail the facts claimed to be res judicata.

An 'oral demurrer' to the amended special plea, read into the record at the beginning of the trial, was likewise sustained. The trial then proceeded on the plea of not guilty, and from the resulting verdict and judgment of conviction, defendant has taken this appeal.

Appellant's principal assignments of error relate to the sustaining of the demurrer to his special plea of former acquittal. He cites the following constitutional and statutory provisions:

'No person shall * * * be twice put in jeopardy for the same offense.' State Const. Art. 1, § 9.

'When the defendant has been convicted or acquitted upon an indictment or information of an offense consisting of different degrees, the conviction or acquittal shall be a bar to another indictment or information for the offense charged in the former, or for any lower degree of that offense, or for an offense necessarily included therein.' Rem.Rev.Stat. § 2166.

Appellant contends that the offense of murder in the first degree, as charged in the information in the prior case, necessarily includes the offense of robbery; and that, therefore, his acquittal in that case operates as a bar to the information in the present case.

A person is not put in second jeopardy by successive trials unless they involve not only the same act, but also the same offense. There must be substantial identity of the offenses charged in the prior and in the subsequent prosecutions both in fact and in law. The same act may be a violation of two different penal statutes, in which case there may be two separate and successive prosecutions against the offender, because the offenses are not the same. The rule thus stated, which prevails in most jurisdictions, has been adopted by this court. State v. Reiff, 14 Wash. 664, 45 P. 318; State v. Peck, 146 Wash. 101, 261 P. 779; State v. Kingsbury, 147 Wash. 426, 266 P. 174; State v. Danhof, 161 Wash. 441, 297 P. 195.

The rule is, however, subject to the qualification that the offenses involved in the former and in the latter trials need not be identical as entities and by legal name. It is sufficient to constitute second jeopardy if one is necessarily included within the other, and in the prosecution for the greater offense, the defendant could have been convicted of the lesser offense. 15 Am.Jur. 54, § 380; 16 C.J. 271, § 449.

Remington's Revised Statutes, § 2166, supra, upon which appellant relies, is essentially only a statutory declaration of this qualification of the general rule.

Applying these principles to the case at bar, the appellant has not, necessarily, been twice placed in jeopardy, because the murder prosecution and the instant prosecution for robbery were both based upon his same acts and transactions. Also, it is apparent that the crimes of murder and robbery are not substantially identical. This leaves for determination, as to second jeopardy, the sole question of whether or not the crime of murder in the first degree, as defined in Rem.Rev.Stat. § 2392, subd. 3, supra, necessarily includes the crime of robbery.

The statute in question defines murder in the first degree, prescribing four different ways in which it may be committed. The first way is 'With a premeditated design to effect the death of the person killed, or of another'; the third way requires no premeditated design if the killing is done under certain circumstances pertaining to a robbery or other specified felony. The requisite circumstantial connection between the killing and the robbery, or other felony, takes the place of the premeditated design in determining the degree of the homicide.

The victim of the robbery need not be the same person as the victim of the homicide, and the robbery may be committed in one jurisdiction and the killing take place in another, the only connection between them being the circumstance of the defendant's flight from the place of the one to the scene of the other. See State v. Ryan, 192 Wash. 160, 73 P.2d 735, 736. The robbery is not necessarily directly included as an integral part of the murder, but is only incidentally related thereto.

In State v. Ryan, supra, the defendant was charged with murder in the first degree while engaged 'in the commission of a larceny and while engaged in withdrawing from the scene of a robbery and a burglary,' and this court, holding that it was not necessary to set out in the information the facts in connection with the commission of the related felonies, said: 'As to the information, the appellant says that it is defective because it did not set out therein the elements of larceny, robbery, and burglary. But this was not necessary. The charge of withdrawing from the scene of a robbery and burglary was incidental to the primary charge of murder in the first degree, and such incidental matters need not be set out.'

It has been held by this court that an information which accuses a defendant of the killing of a human being with a premeditated design to effect death and while engaged in the commission of a robbery is not duplicitous, because it charges but one crime, murder in the first degree; and the reference to the robbery is only incidental to, and descriptive of, such crime. State v. Fillpot, 51 Wash. 223, 98 P. 659; State v. Miller, 164 Wash. 441, 2 P.2d 738; State v. Hall, 185 Wash. 685, 56 P.2d 715.

In the former prosecution, appellant was charged only with the crime of murder in the first degree, and the crime of robbery was not necessarily included therein. The appellant has not, therefore, been twice placed in jeopardy.

Authorities from other jurisdictions are not entirely in accord, but the following support this conclusion: Warren v. State, 79 Neb. 526, 113 N.W. 143; State v. Moore, 326 Mo. 1199, 33 S.W.2d 905; State v. Elder, 65 Ind. 282, 32 Am.Rep. 69; Duvall v. State, 111 Ohio St. 657, 146 N.E. 90.

The authorities cited by appellant are not applicable, as none of them involve the particular question of included offenses presented in the instant case.

Appellant also contends that his...

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