State v. Brent

• Decision Date: 24 July 1947
• Docket Number: 30170.
• Citation: State v. Brent, 183 P.2d 495, 28 Wn.2d 501 (Wash. 1947)
• Parties: STATE v. BRENT.
• Court: Washington Supreme Court

183 P.2d 495

28 Wn.2d 501

STATE v. BRENT.

No. 30170.

Supreme Court of Washington

July 24, 1947

Department 2

Rehearing Granted Dec. 8, 1947.

Harold Theodore Brent was convicted of murder in the second degree. From an order granting a new trial, the State appeals.

Reversed and cause remanded.

Appeal from Superior Court, Island County; Charles R. Denney, Judge.

Alden B. Whelan, Pros. Atty., of Coupeville, for appellant.

Edwards E. Merges, of Seattle, for respondent.

ROBINSON Justice.

On August 17, 1946, Harold Theodore Brent shot and killed Donald Caldbick at the Caldbick home near Oak Harbor Island county, Washington. On November 21st, at the close of a long trial, a jury found Brent guilty of murder in the second degree. This appeal is from an order entered January 28, 1947, granting a new trial.

During oral argument here, respondent's counsel repeatedly and vehemently asserted that a full and complete examination of all the evidence would inevitably convince any court that the conviction of his client was the sole anf proximate result of an unlawful conspiracy between the relatives of Donald Caldbick, their friends, and various officials of Island county. All of the oral evidence, comprising some eight hundred and fifty pages of the statement of facts, has been carefully read and examined, much of it checked and rechecked, and the twenty exhibits have been inspected. In our opinion, no unlawful conspiracy is shown or even indicated. To convict one of a crime is not an unlawful end and persons who in good faith collaborate in an effort to do so are not unlawful conspirators unless they employ unlawful means.

The specific legal questions presented for our decision are such that a comprehensive recital of the evidence is not required. However, the highlights must be stated to establish the requisite background.

At the time of the tragedy, Mrs. Caldbick, an elderly widow affectionately called 'Granny' by her intimate friends, had, for a considerable period, lived in a hilltop house near Oak Harbor. Her son, Donald Caldbick, then about thirty-one years old, had lived with her intermittently, and continuously for several months, Before he was killed. She owned a small cottage located at the foot of the hill, about two hundred feet from her home, which, for some months, had been occupied by Harold Brent and his wife. Mrs. Caldbick and the Brents had become very close friends, and so, as Brent testified at length, had he and Donald Caldbick.

On August 17, 1946, the Brents were expecting guests, and Donald had been helping Brent clean up around the Brent premises, not, as we understand it, working for hire, but as a neighborly accommodation. During the course of the work, each of them had two drinks of some sort of a rum mixture concocted by Mrs. Brent, and in the late afternoon they drove to a tavern in nearby Oak Harbor and there consumed a limited quantity of beer.

According to the Brents, on the way home from Oak Harbor, Caldbick became critical and quarrelsome concerning Brent's driving. They testified that, upon arrival at the cottage, Caldbick, suddenly and without warning, dragged Brent out of the car and began to beat him. Carol DeVries, a neighbor who was working in his nearby yard, testified, however, that, when the car stopped, Caldbick took a box out of the car and started up the hill toward his home. Brent got out of the car and stated chasing Mrs. Brent up the road, and, as he overtook her, struck her, whereupon Caldbick dropped his box, ran back, and attacked Brent, Mrs. Brent standing by and crying out: 'Beat him up good; he deserves it,' but, as the beating progressed, begging him to lay off.

(In a memorandum opinion ruling upon the motion for a new trial, the trial court said that: 'The jury was fully warrented in believing every word of the testimony of Carol DeVries--Darol and Martha DeVries.')

Whatever the fact may be as to the start of the quarrel, it is certain that Coldbick, who was larger and stronger than Brent, gave him a terrific and unmericiful beating, knocking him down and repeatedly kicking him in the face and body with his heavy work shoes. Caldbick finally turned and ran up the hill towards home. The Brents testified that, as he ran, he shouted that he was going to kill everybody on the Caldbick hill, and, knowing that his mother was at home, they began to cry out, 'Granny, Granny, Granny.' That they did so cry out is corroborated by both Carol and Martha DeVries, and, as will be later seen, the established fact that they did so cry out may well be regarded as the cornerstone of Brent's defense.

As Caldbick started to run up the hill, Brent hurried into his cottage, got his single-barreled shotgun, and pursued him, and, as Caldbick was about to reach the shelter of his house, fired. The shot tore Caldbick's right hand and his right ear, and stray pellets were lodged in his head, back, and right knee. According to the testimony of his mother, he burst into the house, crying out: 'I've been shot, mother. Harold shot me.' She took him into the laundry room and washed the blood from his hand from which the tips of two fingers had been shot away. Mrs. Caldbick testified that, after this had been done, Donald went into his closet and got a shotgun, and said:

'Harold is beating Pat [Mrs. Brent] up. He can't do that. I'm going to kill him.'

She took the gun away from him and laid it across the laundry tray, where it remained until after the tragedy. It was not loaded, although there were a number of boxes of shotgun shells in the closet from which he procured it.

It appears that at about that time Brent entered the Caldbick house. Mrs. Caldbick told him to go into her bedroom and stay there, and that she could handle Donald. He obeyed her request. She then telephoned Mrs. DeVries, asking her to send her husband over. While she was telephoning, Donald evidently went out of the house; for, as DeVries answered the summons, he met him running down the hill. He was unarmed. DeVries testified:

'He was running, hollering, 'I'm going to kill you; I'm going to kill you.' He got about, I would say, 30 feet from me and I says, 'Don, what's the matter with you? Behave yourself.' He stopped, turned around and ran back into his own home.'

DeVries testified that he followed him at a slower pace, and, when he entered the livingroom, 'Mrs. Caldbick had Don sitting on the little stool which sits right in front of the fireplace.' They were talking, but he did not hear what they were saying. Mrs. Caldbick stepped into the kitchen and nodded to DeVries to come out there, which he did. She said, 'I've got Harold shut up in the bedroom. Everything will be all right. You go to the phone and call for help.' DeVries encountered the obstacles commonly met with on a rural party line, and 'rang an rang and rang.' Then he heard a shot and hurried out to the livingroom, Mrs. Caldbick preceding him. She went to the front door. Donald was lying on the porch just outside. She cried out, "Oh, he's killed him, he's killed him.' Brent then came across the room and offered me his shotgun.'

Obviously, Donald must have gone outdoors when DeVries and Mrs. Caldbick were trying to telephone. Brent, according to his own testimony, had remained for a little while in Mrs. Caldbick's bedroom and had then gone into another room, and, as we understand the evidence, had then gone to a small hall-like room which had a door opening into the livingroom. From this door he could see the door through which one would enter the house from the front porch. While he was standing in that interior doorway, or looking out of it, Caldbick opened the livingroom door, put one foot over the threshold, and Brent shot him while he was thus entering the house.

On the night of the killing, Brent told his story to Raymond Nelson, a deputy sheriff, how he and Caldbick were working, the drinks they took at home, the trip to Oak Harbor, the beating, his going up to the Caldbick house, the shooting of Caldbick as he entered the front door, and so forth, but said nothing whatever about having fired the first shot. Nor did he mention it in making a similar detailed statement to the prosecuting attorney later on the same evening. However, upon an examination of Caldbick's body at the undertaking parlors late that night, it became indisputably evident that he had been shot at least twice. While telling his story to the sheriff on Monday, Brent said that he had until then forgotten, or could not remember, firing the first shot, and even at that time could not remember pulling the trigger.

At the trial, the respondent gave the following testimony as to the second and fatal shot. When standing in the little hallway room commanding the entrance into the livingroom from the porch, he looked out from time to time, opening the door about six inches.

'A. * * * I heard a scuff, and I glanced up and Don was running on the porch towards me, and, as he stepped across the doorway here, he says, 'I'm going to kill you, you son-of-a-bitch.' I looked him right in the face, and I turned and I shot him.

'Q. What was your state of mind at the time you shot Donald Caldbick? A. I thought he was going to do just exactly what he said he was going to do. I thought he was going to kill me.

'Q. Did you know whether or not he had a gun? A. I did not. All I seen was his face and shoulders.'

On cross-examination, he testified, in part, as follows:

'A. The minute I heard the scuffing, I looked out the front door.

'Q. And saw Don coming in the front door? A. He was running in the front door.

'Q. And he came right straight toward you? A. Well, he was coming right straight at me, Mr. Dailey. I wouldn't say straight. I don't know. I couldn't describe...