State v. Brown

• Decision Date: 27 August 1934
• Docket Number: 25100.
• Citation: 35 P.2d 99,178 Wash. 588
• Parties: STATE v. BROWN.
• Court: Washington Supreme Court

35 P.2d 99

178 Wash. 588

STATE v. BROWN.

No. 25100.

Supreme Court of Washington

August 27, 1934

Department 1.

Appeal from Superior Court, Yakima County; Dolph Barnett, Judge.

John Brown was convicted of murder in the second degree, and he appeals.

Affirmed.

Bonsted & Nichoson, of Yakima, for appellant.

O Sandvig and M. C. Delle, both of Yakima, for respondent.

BEALS Chief Justice.

The prosecuting attorney of Yakima county by information charged defendant, John Brown, with the crime of murder in the first degree, committed by shooting one Ubale Desallier on or about the 7th day of September, 1932. Defendant pleaded not guilty and in due time the case proceeded to trial Before the court and a jury.

At the close of the state's case, defendant moved the court as follows: (1) To withdraw from the consideration of the jury the charge of murder in the first degree; (2) to withdraw from the consideration of the jury the charge that the defendant was guilty of murder in the second degree; and (3) that the court instruct the jury to bring in a verdict of not guilty.

The state conceded the first motion, and the court accordingly granted defendant's motion to withdraw from the consideration of the jury the charge of first degree murder.

The other motions were by the court denied, and the cause proceeded upon the charge of murder in the second degree.

The jury found defendant guilty of murder in the second degree and from judgment and sentence pursuant to this verdict defendant appeals.

Error is assigned upon the refusal of the court to strike the testimony of the witness R. M. Welshons; upon the denial of appellant's motion for a directed verdict in his favor at the close of the state's case; upon the denial of appellant's motion for a directed verdict of not guilty made at the close of the case; upon the giving of certain instructions; upon the denial of appellant's motion for judgment in his favor after the rendition of the verdict of guilty; and upon the denial of his motion to set aside the verdict or in the alternative for a new trial.

It appears that the deceased, Ubale Desallier, had, at about 8 o'clock on the evening of September 7, 1932, come to the home of Clyde Nell, located near the home of appellant, and stated that he had been shot and needed a doctor. Mr. Nell and another neighbor hurried Desallier to a hospital in Yakima, where he died shortly after his arrival. The physicians who performed the autopsy testified that he had been shot; that the bullet had entered his back about two inches to the right of his spine, between the tenth and eleventh ribs.

Appellant's married daughter Irene Williams testified both as a witness for the state and for appellant. She stated that she had lived with her father for three or four years, and that she had known Desallier for about the same period; that he assumed to care for the witness and wrote her letters expressing affection. It appeared that the witness and Desallier were both married, and that Mrs. Desallier had asked the witness not to associate with Desallier, and that the witness had promised Mrs. Dessalier that she would no longer do so. Mrs. Williams testified that her father objected to her association with Desallier, and that the latter did not call at appellant's house, but met the witness elsewhere.

It appears that after Desallier had been shot his automobile was found on a side road near appellant's ranch.

Appellant, taking the stand on his own behalf, testified that on the day of the shooting he was fixing a wire fence on his farm, and that a man who he thought was his son-in-law Williams came up and struck at him with a stick or club of some sort; that the club struck first a fence post and bouncing off struck appellant on the side of his head, throwing him to his knees; that he grappled with the man and drew a 22-caliber pistol which he had in his pocket, intending to strike his assailant and 'knock him out'; that the gun was discharged in the scuffle, he having no intention to fire it, and that he did not know where the bullet went; that the man then turned and walked off, uttering threats against appellant; that appellant did not know that the man had been shot.

Appellant further testified that he left home early the next morning and drove to Seattle, and that while there he learned that he was charged with having shot a man the night Before .

Roy M. Welshons, a witness for the state, testified that the bullet taken from Desallier's body at the autopsy was .22-caliber and could have been fired from a .22-caliber pistol or revolver. At the close of the state's case appellant moved to strike Mr. Welshons' testimony to the effect that this bullet could have been fired from a .22-caliber revolver or pistol; there being no evidence in the case that connected appellant with any such weapon.

Appellant assigns error upon the refusal of the trial court to grant this motion, admitting, however, that the description of the bullet as to its caliber was competent. The fact that a .22-caliber bullet could be fired from an arm of that caliber, whether pistol, revolver, or rifle, would seem self-evident, and we find no prejudicial error in the failure of the trial court to grant appellant's motion to strike that portion of Mr. Welshons' testimony above referred to.

Appellant next contends that the trial court erred in denying his motion for a directed verdict of not guilty made at the close of the state's case. Appellant failed to stand upon his motion, but proceeded to introduce testimony on his own behalf. The rule is stated in 16 C.J. 938 (Title, Criminal Law) as follows: 'Although there is authority to the contrary, as a general rule a motion for a directed verdict, made at the close of the case for the prosecution and overruled, is waived by defendant proceeding with the trial and introducing evidence, unless the evidence introduced has no bearing on the merits of the case.'

We are satisfied that the text cited is a correct statement of the law, and that in a criminal trial a defendant who moves for a directed verdict of acquittal at the close of the case for the prosecution, but when the same is overruled fails to stand on his motion and proceeds to introduce testimony on his own behalf, waives his motion, and that on appeal from a judgment of guilty the entire record must be searched in determining whether or not the one convicted was entitled to judgment in his favor as matter of law.

Appellant, in support of this assignment of error, cites the opinion of this court in the case of State v. Pagano, 7 Wash. 549, 35 P. 387. While the opinion in the case cited refers to a motion for dismissal made at the close of the state's case, it appears from the opinion that the court passed upon the entire evidence, including that introduced by the defendant, and based its conclusion that the judgment and sentence must be set aside upon the entire record.

In the case of State v. Wilson, 10 Wash. 402, 39 P. 106, the majority of the court held that the judgment based upon a verdict of guilty of murder in the second degree should be affirmed. In the opinion an assignment of error based upon the refusal of the trial court to grant the defendant's motion for a directed verdict made at the close of the state's case was discussed, but the case is not an authority for the proposition that appellant's assignment of error now under discussion should be granted.

In the case of State v. O'Hara, 17 Wash. 525, 50 P. 477, 933, a judgment of guilty was reversed; the court referring to the defendant's contention that the state's evidence was insufficient to sustain the verdict of guilty. It is clear that the court considered the entire record in determining that the verdict of guilty should be set aside.

In none of the cases cited was the question now presented discussed, and we adhere to the doctrine laid down in the foregoing quotation from Corpus Juris.

This rule is supported by the following authorities: Wilson v. Haley Live-Stock Co., 153 U.S. 39, 14 S.Ct. 768, 38 L.Ed. 627; Leyer v. United States (C. C. A.) 183 F. 102; Pistillo v. United States (C. C. A.) 26 F.(2d) 202; Briggs v. People, 76 Colo. 591, 233 P. 836; State v. Lackey, 230 Mo. 707, 132 S.W. 602; Tindel v. State, 80 Tex. Cr. R. 14, 189 S.W. 948; State v. Wolff, 173 Iowa, 187, 155 N.W. 165.

We shall now consider appellant's assignments of error based upon the denial of his motions for judgment in his favor upon the ground that the entire evidence was insufficient to justify the submission of the case to the jury or to support the verdict of guilty and judgment and sentence pursuant thereto.

Appellant argues that intent to commit a crime or perform an act from which a criminal intent may be inferred must in such a case as this 'be proven beyond a reasonable doubt, and that there must be some evidence of such an intent to support a verdict' of guilty. He earnestly contends that the record fails to disclose any evidence of criminal intent on his part. Appellant admits that on the night of September 7, 1932, he engaged in a scuffle with a man whom he claims he did not know and who he testified was the aggressor in the affair, and that in the course of the struggle his 22-caliber pistol was discharged.

It is not questioned but what Desallier met his death on the night of September 7, 1932, as the result of a gunshot wound. From the evidence the jury believed that appellant had inflicted that wound. Careful study of the evidence convinces us that the jury may have believed that as to certain matters appellant and other persons testifying on his behalf did not tell the truth. It was, of course, the province of the jury to pass upon disputed questions of fact.

In certain cases, a...