State v. Britton, 30070.

CourtUnited States State Supreme Court of Washington
Citation178 P.2d 341,27 Wn.2d 336
Docket Number30070.
Decision Date13 March 1947

Department 1

Rehearing Denied April 30, 1947.

Department 1.

Richard Britton was convicted of first-degree murder, and he appeals.


Appeal from Superior Court, King County; Matthew W. Hill, judge.

Monheimer Schermer & Mifflin, of Seattle, for appellant.

Lloyd Shorett and Max R. Nicolai, both of Seattle, for respondent.


The defendant was charged, in an amended information, with the crime of first-degree murder, as follows:

'He the said Richard Britton, in company with another person who has not been apprehended, in the County of King, State of Washington, on or about the 13th day of December, 1945 while then and there, wilfully, unlawfully and feloniously engaged in committing, attempting to commit or in withdrawing from the scene of the commission of a Robbery, wilfully, unlawfully and feloniously did shoot at, toward and into the body of one Clayton Stockberger, a human being, with a certain deadly weapon, to-wit: a shotgun, then and there had and held by said person who has not been apprehended, thereby mortally wounding the said Clayton Stockberger, from which wounds the said Clayton Stockberger then and there died;
'Contrary to the statute in such case made and provided, and against the peace and dignity of the State of Washington.'

Upon a trial, the jury returned a verdict of first-degree murder, as charged. From judgment and sentence entered on the verdict, the defendant has appealed.

The Florsheim Shoe Store is located on the north westerly corner of Second avenue and Marion street, in the city of Seattle, with the entrance on Second avenue. The room is 20 by 40 feet and contains the usual chairs, tables, display counters, shelves, and show cases found in a shoe store. On the afternoon of December 13, 1945, at about 4:30 o'clock, Mr. Clayton Stockberger, the manager, and a clerk were busy waiting on customers. A man came in, and was measured for a pair of shoes by the clerk. Then another man armed with a shotgun entered. One of the two said, "It is a stickup. I want your money." The one with the shotgun fired at Mr. Stockberger, who was standing at the back cash desk, killing him instantly. The two men then fled from the store and down the hill on Marion street towards First avenue. Shortly thereafter, when the police arrived, they found a hat and a jacket on a parking meter located just east of the alley on Columbia street, between Second and First. The hat was later, identified as the appellant's and the jacket as belonging to his brother Homer.

The next day, at the police station, a woman customer who had witnessed the holdup and murder picked out from the mug book the appellant as one of the bandits. Later, she pointed him out in a line-up at the police station. Of six people who saw the two men at the scene of the crime that afternoon, four of them pointed out the appellant in the line-up. He was identified as having participated in the crime, but not as the man who fired the shot.

The appellant lived in the Lakewood housing project, out from White Center, with his wife and child and his brother Homer. He and Homer did not return home the night Before the holdup. Between 11 and 12 on the morning of the day in question, the two brothers went to their home with a third man, whom they did not introduce to Mrs. Britton or to another woman who was staying with the Brittons. They were there about twenty minutes and then left, the third man wearing Homer's coat and carrying appellant's hat in his hand. Appellant and Homer came back that evening between 5 and 6. Mrs. Britton was not there when they arrived, she having taken their car to a garage for repairs. Upon her return, the men wanted the car, so Homer and Mrs. Britton went to the garage for it. About 7 o'clock that evening, the men left, and Mrs. Britton did not see them again until they were brought back under arrest.

The night of the holdup and murder, the men started for Texas. They drove directly to Ellensburg, where they stayed a couple of days. Their next stop, for three or four days, was at Hagerman, Idaho, because they had wrecked their car and it was laid up for repairs. They registered at a hotel under assumed names and gave fictitious addresses. Outside of this fact, there was no evidence that they had attempted to keep under cover.

They arrived at Van Alstyne, Texas, two days or so Before Christmas, and stayed with their parents until December 27th, when they were picked up on the holdup and murder charge. The brothers waived extradition and were brought back to Seattle. Originally, appellant and Homer were charged jointly. The charge against Homer was later dismissed, and he was called by the state as a witness in this case.

At the trial, appellant testified that, on the afternoon of December 13th, he and his brother had driven with two men, whom he did not know, to White Center. Arriving there, he and Homer got out of the car and spent the afternoon drinking together in two beer parlors. At 4:15 or 4:35, they caught a bus home. He denied that he had ever been near the Florsheim Shoe Store, and said that he did not know about the holdup or murder until he read about it in the newspapers.

Error is assigned upon the giving of certain instructions, the refusal to give others, and upon the entry of an order overruling appellant's objection to the entry of judgment and sentence by Judge Matthew W. Hill.

Homer Britton was called as a witness for the state, but refused to answer practically all questions on the ground that such answers would tend to incriminate him.

Appellant proposed the following instruction, designated as defendant's requested instruction No. 1:

'In this case one of the witnesses, Homer Britton, refused to answer a number of questions upon the ground that to so answer would tend to incriminate and degrade him.

'You are instructed that the files and records in this case disclose that Homer Britton was previously charged jointly with Richard Britton, and was subsequently dismissed. The law of this State would permit his subsequent prosecution for the same crime and, therefore, he was perfectly within his legal rights in refusing to answer the questions put of him. You are to draw no interence of guilt of the defendant, Richard Britton, by reason of the failure or refusal of the witness, Homer Britton, to answer any questions under his claim of privilege.'

The instruction was refused, and the court gave in its stead instruction No. 18:

'In this case one of the witnesses, Homer Britton, refused to answer a number of questions upon the ground that to so answer would tend to incriminate and degrade him.

'You are instructed that he was entirely within his legal rights in claiming this privilege.'

The privilege to refuse to testify on the ground that such testimony would tend to incriminate him, belongs exclusively to the witness and cannot be taken advantage of by the defendant. There was no error in giving instruction No. 18 or in refusing to give appellant's requested instruction No. 1.

The trial court gave instruction No. 9, as follows: 'Every killing of a human being is presumed in law to be without excuse or justification. Any matter of excuse or justification that may exist for such killing, if such killing you find to be a fact, is matter of defense and the State is not required to prove to you affirmatively that no such excuse or justification existed. It is required, however, that you be convinced, from all the facts and circumstances surrounding the transaction, beyond a reasonable doubt, that such killing was without excuse or justification.'

There was not one word of testimony in the record concerning excuse or justification for the killing, and the instruction was clearly erroneous. When the record discloses an error in an instruction given on hebalf of the party in whose favor the verdict was returned, the error is presumed to have been prejudicial, and to furnish ground for reversal, unless it affirmatively appears that it was harmless. 3 Am.Jur. 511, § 949. However, it becomes our duty, whenever such a question is raised, to scrutinize the entire record in each particular case, and determine whether or not the error was harmless or prejudicial.

A harmless error is an error which is trivial, or formal, or merely academic, and was not prejudicial to the substantial rights of the party assigning it, and in no way affected the final outcome of the case. Remington's Revised Statutes, § 307, provides: 'The court shall, in every stage of an action, disregard any error or defect in pleadings or proceedings which shall not affect the substantial rights of the adverse party, and no judgment shall be reversed or affected by reason of such error or defect.'

A prejudicial error is an error which affected the final result of the case and was prejudicial to a substantial right of the party assigning it. 3 Am.Jur. 555, § 1003, states: 'It is a fundamental rule of modern appellate procedure that in order to warrant a reversal, the error complained of must have been prejudicial to the substantial rights of the appellant or plaintiff in error.'

A common test to determine whether an error was harmless or prejudicial is found 3 Am. Jur. 562, § 1007:

'One very common test which is applied in a variety of situations is whether or not the error affected the result. If it did not, then it is not reversible error.

'For the purpose of determining whether or not the appellant has been injured, it is proper to look to the whole record, and not to that part only which precedes and includes the particular exception under consideration.'

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