State v. Bezemer

• Decision Date: 20 September 1932
• Docket Number: 23854.
• Citation: State v. Bezemer, 169 Wash. 559, 14 P.2d 460 (Wash. 1932)
• Parties: STATE v. BEZEMER.
• Court: Washington Supreme Court

14 P.2d 460

169 Wash. 559

STATE v. BEZEMER.

No. 23854.

Supreme Court of Washington

September 20, 1932

Department 1.

Appeal from Superior Court, Pacific County; H. W. B. Hewen, Judge.

Leo Bezemer was convicted of murder in the first degree, and he appeals.

Affirmed.

James P. Neal, of Olympia, and Fred M. Bond, of South Bend, for appellant.

John I O'Phelan, of Raymond, and John J. Langenbach, of South Bend, for the State.

STEINERT J.

The defendant was prosecuted, in the court below, for the crime of murder in the first degree.The jury returned a verdict of guilt, but specially found that the death penalty should not be inflicted.The court by its judgment imposed a sentence of life imprisonment in the penitentiary.The defendant has appealed.

The information, omitting its formal parts, reads as follows 'That he, the said Leo Bezemer, on or about the 19th day of August, 1931, in Pacific County, Washington, then and there being, did then and there with a pre-meditated design to effect the death of Robert Carlson, and without any excuse or justification, willfully, unlawfully, wrongfully and feloniously stab and cut the said Robert Carlson with a knife which he, the said Leo Bezemer, then and there held in his hand and said Leo Bezemer did thus and thereby then and there kill and murder the said Robert Carlson and from the effect of such stabbing and cutting the said Robert Carlson did die on the 20th day of August, 1931, contrary to the form of the statute, etc.'

The facts, as disclosed principally by the evidence for the appellant, are substantially these: The deceased, Robert Carlson, and the appellant were neighbors, living on adjoining farms.Carlson, a married man, was about thirty years of age, was about five feet eleven inches in height weighed about one hundred and seventy-five pounds, and was very muscular and agile.The appellant, an unmarried man, was about fifty years of age, was about five feet nine inches in height, and weighed about one hundred and forty-five pounds.He lived along on a farm owned by his father, K. Bezemer, on which he was employed in raising vegetables for the market.Carlson lived on an adjoining farm, and in connection with its operation owned and kept a number of blooded cows.Carlson and the appellant had known each other for seven or eight years, and had had the usual contacts of neighbors, although they were not particularly intimate in their association with each other.Carlson had also owned a dog, which had been poisoned, however, by some unknown person shortly Before August 19, 1930.Carlson suspected that the appellant or the appellant's father was responsible for the poisoning.On the Sunday preceding August 19, while appellant was driving his horse along the road in front of Carlson's home, the latter accosted, and, in a very belligerent manner, accused appellant of having poisoned the dog.The appellant protested his innocence of the deed and likewise his friendship for Carlson, but succeeded only partially in mollifying the latter's anger.

So far as the record discloses, the two men do not seem to have had any further contact with each other between the time of that occurrence and August 19.On the latter date, about 5 o'clock in the afternoon, Carlson went out to herd his cows and bring them home.He found them on appellant's land.They had evidently made their ingress upon the Bezemer farm through a wire fence which ran along one side of it, adjacent to the Carlson property.The fence consisted of strained wire fastened to a series of posts and stumps.A gateway had been fashioned by detaching the wires from one of the posts or stumps and fastening them to a movable stake or post which could be adjusted at will.In this way the so-called 'Arizona gate' could be held in place as a part of the fence or swung open, as occasion required.Shortly Before the date mentioned above appellant had cut the wires from one of the posts near the gate, thus leaving a gap in the fence.The exact time of the cutting is, according to the evidence, a matter in dispute.Appellant testified that for convenience of exit and return he had cut the wires two or three weeks Before August 19, intending to make, or re-establish, the gate at that point.Evidence by the state tended to show that the cutting was done on or shortly Before August 19.In the vicinity of the gate were many trees and much underbrush of varying height and density.Seeing the cattle in his field, appellant left his home and proceeded toward the fence, intending to drive them out.He did not, however, at that time see Carlson or know that he was in the immediate vicinity.As the appellant emerged from the thicket of trees and underbrush, he saw Carlson holding on to one of the cows, and, with a stick or club in his hand, attempting to steer or drive the herd through the opening.Appellant approached with the intention of offering assistance.Carlson, on looking up and seeing the appellant, released his hold on the cow and a verbal altercation regarding the fence and its condition immediately ensued between the two men.According to the appellant, the altercation was initiated by Carlson, during which he made a lunge at the appellant and struck at him with the stick in his hand.Appellant darted under Carlson's arm as the blow fell, and, as a result of the clash between the two men, the stick 'fulcrumed' out of Carlson's hand.At about the same time appellant struck Carlson in the face with his first, though somewhat awkwardly and weakly.The men grappled, fell, and rolled upon the ground, Carlson finally landing on top of the appellant.Carlson then began administering blows upon the appellant, pulling his hair and pounding his head upon the ground, at the same time threatening to kill him.Appellant drew himself as far down underneath Carlson as he could, and with his left arm endeavored to hold Carlson close to him and in this way interfere with the blows being rained upon him.Knowing that he was no match for his assailant, and feeling that his strength was fast leaving him, appellant reached for his vegetable knife which had an open blade about four and a half inches long and one or one and a half inches wide, and which he carried in his right-hand pants' pocket.After warning Carlson that he would use the knife unless he was released, appellant began to stick Carlson in the back over and about the left shoulder.These attempts, however, did not seem to have any effect upon Carlson, as he made no outcry or gave any evidence that the knife was cutting him, but continued to pommel the appellant, Realizing that his situation was becoming desperate, appellant made a final lunge with his knife into the fieshy part of Carlson's left side.This wound afterwards proved fatal.On receiving the final blow, Carlson wrenched himself free of the appellant, rose to his feet and retreated, at the same time saying, 'Don't kill me,' to which appellant responded, 'Why you fool I am not trying to kill you, you are trying to kill me.'Carlson them turned and proceeded to walk slowly back along the fence towards his home.Appellant followed him a short distance, and then turned and walked, or ran, to his own home, from whence he drove his automobile to Raymond and there surrendered himself to a deputy sheriff.Appellant could not remember what he had done with the knife, and neither it nor the stick which Carlson is alleged to have had in his hand have ever been found.A pool of blood several inches in diameter was later discovered at the point where the men fought while lying on the ground.As already stated, the evidence thus far outlined was principally from the appellant's witnesses.

Testimony on behalf of the state with respect to Carlson after the appellant had left him was that Carlson got as far as his own barnyard and there staggered and fell.His wife, hearing him call, ran to his assistance, but, being unable to move him, she rendered what aid she could in an attempt to alleviate his suffering and make him comfortable.At her husband's request, she returned to the house and summoned an ambulance.In a very short while the ambulance arrived, followed immediately by the county sheriff and others.Upon being questioned regarding the affair, the deceased made statements to the sheriff and several other witnesses concerning what had happened.Carlson was then taken to a hospital in Raymond where an operation was performed upon him and his wounds dressed.An examination disclosed that he had been stabbed seventeen times; the cause of his death being attributed to the final lunge into his side.When examined at the sheriff's office, the appellant had no wounds upon him except a cut on one finger, which he testified he had received while extracting the knife from his pocket.

Appellant assigns thirty-nine errors.These are grouped for discussion, in the briefs, under twelve heads.The first group, comprising the first four assignments, attacks the sufficiency of the information.It is contended that the charge is insufficient, for the reason that it did not allege that the deceased died in Pacific county, state of Washington.

We have had occasion to pass upon a similar contention in the recent case of State v. Stone(Wash.)13 P.2d 427.That case arose in Pacific county, as did this case, and the language used in that information, except for one detail, was practically the same as that used in the present information.In that case death had ensued immediately; in this case death ensued on the following day but within twelve hours after the occurrence.The contention made here was likewise made in the Stone Case, and the authorities here cited were also cited there.The court, after analyzing the authorities and the...