State v. Beebe

• Decision Date: 04 January 1912
• Citation: 120 P. 122,66 Wash. 463
• Parties: STATE v. BEEBE.
• Court: Washington Supreme Court

120 P. 122

66 Wash. 463

STATE v. BEEBE.

Supreme Court of Washington

January 4, 1912

Department 1. Appeal from Superior Court, Chelan County; Wm. A Grimshaw, Judge.

Hannah Beebe was convicted of manslaughter, and she appeals. Reversed.

Martin Rozema, for appellant.

Fred Kemp and Ludington & Kemp, for the State.

PARKER J.

Della Totten and Hannah Beebe were jointly charged with the crime of murder in the first degree by information filed in the superior court for Chelan county, as follows: 'That the said Della Totten, in the county of Chelan, state of Washington, on the 10th day of August, A. D. 1910, then and there being, then and there willfully, unlawfully, and feloniously, of her deliberate and premeditated malice, and with a premeditated design to effect the death of one James E. Sutton, killed said James E. Sutton, by then and there willfully, feloniously, and of her deliberate and premeditated malice, and with premeditated design to effect his death, shooting and mortally wounding the said James E Sutton with a shotgun which she, the said Della Totten, then and there held in her hands; and that said Hannah Beebe then and there, at the said felonious shooting and killing of said James E. Sutton by said Della Totten, as aforesaid willfully, unlawfully, feloniously, and of her deliberate and premeditated malice, and with a premeditated design to effect the death of said James E. Sutton, was present, and that she, the said Hannah Beebe, did then and there feloniously, willfully, and of her deliberate and premeditated malice, and with premeditated design to effect his death, counsel, aid, incite, abet, and encourage the said Della Totten in the said felonious shooting and killing of said James E. Sutton, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the state of Washington.' Hannah Beebe was awarded a separate trial, which resulted in her conviction of manslaughter, upon which she was sentenced for a term of not less than one nor more than two years in the penitentiary. From this conviction, she has appealed.

Appellant is a widow, about 69 years old, and Della Totten is her married daughter. On August 10, 1909, and for some years prior thereto, they lived within a few rods of each other, each upon their own land, some five miles southwest of the town of Cashmere, Chelan county, in what is commonly known as 'Bender Canyon.' James H. Sutton and his family, consisting of several boys and girls, one of whom was James E. Sutton, the deceased, whose death is charged to appellant and her daughter, lived upon their ranch at the head of the canyon above and adjoining the land of appellant. For some years prior to August 10, 1910, the Sutton family had been accustomed to use a private road running across appellant's land which constituted their most convenient way out to the town of Cashmere. This road also furnished a convenient way to other land belonging to the Sutton family, situated in the canyon below the land of appellant. Photographs of this road offered in evidence indicate that it is a well-traveled road and has been used a great deal. There does not appear to have been any effort on the part of appellant to close this road to the Suttons until shortly prior to August 10, 1910. On August 9, 1910, appellant built a wire fence across the road within the boundaries of her own land, and placed there a sign containing the words, 'No trespassing.' This fence and sign were placed in view of the homes of appellant and her daughter, and apparently not exceeding 200 yards therefrom. During the evening of that day, some one cut the wires and opened the fence, so as to permit the usual free passage along the road, and also removed the sign. The following day (August 10th) appellant and her daughter concluded to rebuild a fence across the road and put up another sign. Early in the afternoon of that day, probably about 1 o'clock, appellant went to the place alone, carrying some tools, and about 15 minutes later her daughter followed, carrying a shotgun and a new sign, which she had prepared. One or the other also carried a lunch; their intention evidently being to remain a considerable time. The daughter, Mrs. Totten, was somewhat skilled in the use of the gun, having used it in shooting game and small predatory animals. Appellant testified that she did not know that her daughter was going to bring the gun along until she arrived with it, and there is no evidence showing otherwise. They then proceeded to rebuild the fence and put up the new sign, completing their work in about an hour and a half. They then stationed themselves a short distance away upon the hillside to the east of the road and fence they had constructed, where they remained until the shooting of the deceased occurred late in the afternoon.

About 3 o'clock the elder Sutton drove down the road from his place with a load of wood, and, upon finding the road closed by the wire fence and the two women there apparently on guard, he unhitched his team from the load of wood, leaving it near there, and returned with his team. Some time thereafter, probably an hour and a half or two hours, James E. Sutton, the deceased, his sister, and a younger brother drove down the road on the way to their garden on their land in the canyou below the land of appellant. When they arrived at the fence across the road, the deceased got out of the buggy, took an axe and a hammer out of the back part of the buggy and proceeded to cut the wires and remove the fence from across the road. Appellant then came down from where she and her daughter were, and called his attention to the sign to which he replied, indicating that he did not care for the sign, and proceeded with his work of cutting the wires. Appellant then pointed to the hillside where the daughter, Mrs. Totten, stood with the gun, and asked him if he saw the gun, to which he made no answer, but proceeded with his work of cutting the wires. While he was at this work, appellant was hitting at his hands with an axe, evidently trying to interfere with his cutting the wires.

While this was going on, Mrs. Totten made some remark about shooting him. Some words also passed between her and the sister, who was sitting in the buggy, when Mrs. Totten threatened to shoot the sister if she did not keep still, at the same time pointing the gun at her. About the time the deceased finished cutting the wires, Mrs. Totten called to her mother to get out of the way, and she would shoot him. He then looked towards Mrs. Totten who was coming down the hill towards him. He dodged two or three times, evidently trying to get behind a large stump near the roadside, and was then shot by Mrs. Totten in the side of his neck, resulting in his death almost instantly. Mrs. Totten had advanced to within about 10 feet of him when she fired the fatal shot. These facts are not seriously disputed. There are no facts shown by the record indicating that appellant had anything to do with this fatal occurrence, other than what occurred then and there.

It is contended by counsel for appellant that the trial court erred in admitting evidence, over their objections, of threats made by Mrs. Totten against members of the Sutton family some time prior to the killing of the deceased, and also evidence of statements made by Mrs. Totten, in the nature of admissions on her part, tending to show her own guilt, after the killing of the deceased. These threats and statements were all made out of the presence of appellant, and we are not able to find in the record any evidence tending to show concerted action on their part...