State v. Brown
| Decision Date | 20 September 1948 |
| Docket Number | 29864. |
| Citation | 197 P.2d 590,31 Wn.2d 475 |
| Parties | STATE v. BROWN et al. |
| Court | Washington Supreme Court |
Archie Brown and Aaron Johnson were convicted for first-degree murder and for robbery, and they appeal.
Affirmed.
See also, 26 Wash.2d 857, 176 P.2d 293.
The exclusion of witnesses from the court room is entirely a matter of discretion, and not of right.
Appeal from Superior Court, Franklin County Timothy A. Paul, Judge.
George H. Freese, of Ritzville (Floyd A. Futter and Florence Mayne, both of Pasco, of counsel), for appellants.
William J. Gaffney, of Pasco, for respondent.
Archie Brown, Aaron Johnson and Willie Smith were jointly informed against for first degree murder in one count and robbery in another. Defendants Brown and Johnson were convicted on both counts, and appeal.
At the beginning of the trial, and Before the jury was impaneled, Willie Smith, being represented by counsel, changed his plea from not guilty to that of guilty on the first degree murder count and thereafter the robbery count was dismissed as to him.
The case which the state was prepared to offer, prior to the time Willie Smith changed his plea to the information and testified on behalf of the state, was almost entirely based upon circumstantial evidence.
A couple of days Before the commission of the crime, Aaron Johnson had driven Archie Brown, Willie Smith and Helen Minor from Portland to Pasco in his maroon colored Packard sedan. Aaron Johnson and Helen Minor found quarters at Dixon's Trailer Camp a little way out of Pasco, and Willie Smith stayed at the Parkside Trailers.
On the evening of Friday, September 28, 1945, very soon after dark, a man by the name of Bert Franklin Williams, who had been drinking beer in the Apex tavern in Pasco and had reached that condition where the tavern operator would serve him no more liquor, got into the maroon Packard sedan of Aaron Johnson and in company with Archie Brown and Willie Smith was taken, as he thought, to secure some whisky. Aaron Johnson drove the car, at least after they left the city, and after driving a short distance, he turned off onto a little used one track road and proceeded about a quarter of a mile, where, after going down a dip which his them from the main road, he turned his car around and started back for a distance of thirty feet, when he stopped. Thereupon Archie Brown dragged Williams out of the car, striking him so that he became unconscious, from which blows he died at some time between then and the following morning when he was discovered, without, in all probability, according to medical testimony, ever regaining consciousness.
Willie Smith rifled his clothing and took his money. He was tossed onto the side of the road, after which they pushed the car (because its battery was down) until it started, and the three defendants returned to Pasco.
On the way back, the money taken from the deceased was divided among the three of them. Somewhere around a couple of hours later, a man by the name of Rigas, who had been drinking in the same Apex tavern, had fallen into a conversation with one Dorothy Day. She induced him to enter Aaron Johnson's maroon Packard sedan, and she, with the same three defendants, drove out to approximately the same spot where Williams had been killed, and there Rigas was taken out of the car, beaten, robbed and left. The defendants and Dorothy Day returned to Pasco, dividing the money taken from Rigas among them on the way back.
Much of the record in this case is concerned with the identity of Williams, who was a stranger in Pasco. None of his relatives could be traced. His name was ascertained only by papers in his billfold, such as his social security card.
Some of the chief circumstances relied upon by the state were the marks of the four tires of the car that were made in turning around on the narrow road at the scene of the crime, which were photographed and compared with the tires on the defendant Johnson's car. A claim check on a check stand was found in the effects of Willie Smith and presented at the check stand. The parcel it covered was received. In the parcel was a comb having in or on it certain human hair, cloth fibers and some squirrel hair. These were microscopically examined and compared with the hair of the deceased and certain cloth fibers of his clothing and certain hair in his pocket, by which comparison the state attempted to prove that the parcel, the claim check for which was taken from Willie Smith, had belonged to the deceased. Willie Smith's possession of the deceased's claim check was particularly important to the circumstantial evidence aspect of the state's case.
It was the position taken by Aaron Johnson that he was unaware of the purpose the other two had of committing a robbery until it was actually being done at the scene of the crime. He claimed to have been surprised. He denied receiving any share of the money, and in the Rigas transaction occurring a couple of hours later it was his position that he had expected to receive two dollars from Dorothy Day in return for taking Rigas and Dorothy Day to her residence for their mutual purpose, but that he had not received the two dollars and was not aware that a robbery was contemplated until it was being consummated. In the robbery case Dorothy Day had pleaded guilty, and Aaron Johnson had been dismissed. A finding of lack of intent might well have been the basis upon which his dismissal rested.
It is apparent that there is no possible explanation available as a defense for Archie Brown and Willie Smith who struck and robbed the deceased, but as to Aaron Johnson, whose activity in the crime consisted of furnishing the car and driving it to the scene of the crime but who did not lay hands on the deceased, the question of intent becomes the crux of the matter.
It is true that Willie Smith did give direct testimony upon the purpose of taking the deceased out in the car. This, however, the jury were privileged to disbelieve if they had elected to do so.
Evidence of the Rigas robbery was introduced by the state to show plan, intent and design.
Objections were made to the admission of the testimony in regard to the Rigas robbery on the ground that it showed the commission of a distinct crime and constituted prejudicial error.
It is appellants' contention in assignment of error No. 13 that the second robbery was no part of the res gestae of the first offense; that they were separate and distinct offenses; and that the evidence regarding a subsequent crime was presented for no other purpose than to prejudice the jury, and was violative of appellants' Federal and state constitutional rights.
The evidence presents a clear-cut picture of a plan or a scheme employed which, to that extent, forms a part of the res gestae, marking and identifying the actors, the acts, the means, the place, the time, the objectives, and the results. See 4 Nichols Applied Evidence 3425, § 3.
The rule is that other crimes cannot be shown to establish the crime charged, excepting where they are closely connected with the crime charged and furnish evidence material to that crime. State v. McDonald, 116 Wash. 668, 200 P. 326; State v. Kaukos, 109 Wash. 20, 186 P. 269; State v. Sigler, 116 Wash. 581, 200 P. 323.
The general rule is succinctly stated in State v. Anderson, 10 Wash.2d 167, 116 P.2d 346, 351, as follows:
'The general rule is, of course, that evidence of other crimes may not be introduced to establish the crime charged.'
However, there are well-recognized exceptions to this general rule which likewise are found emphasized in State v. Anderson, supra, in this language:
(Citing cases.)
The application of the exception to the rule has been stated as follows:
(Italics ours.) 1 Wharton's Criminal Evidence, 11th Ed., p. 527, § 352.
The following statement is made in 4 Nichols Applied Evidence, p. 3424, § 2:
In State v. Davis, 6 Wash.2d 696, 108 P.2d 641, 645, a case of murder in the first degree, this court said:
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Hickok-Knight v. Wal-Mart Stores, Inc.
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