State v. Burnett, 31483

• Decision Date: 14 December 1950
• Docket Number: 31483,31484.
• Parties: STATE, v. BURNETT et al.
• Court: Washington Supreme Court

225 P.2d 416

37 Wn.2d 619

STATE, v. BURNETT et al.

Nos. 31483, 31484.

Supreme Court of Washington.

December 14, 1950

Department 1.

Rehearing Denied January 30, 1951. Henry Clay Agnew, Seattle, for appellants.

Charles O Carroll, John E. Prim, Seattle, for respondent.

HILL, Justice.

The principal question here presented is the sufficiency of the evidence to sustain convictions of murder in the first degree against both Roy S. Burnett and Louie Smotherman. There had been a gun battle in a tavern north of Seattle during which the defendant Burnett had shot and killed Fred T Long, the proprietor. The state's theory is that the defendants were engaged in a robbery, or an attempted robbery, of the tavern when the shooting occurred. Rem.Rev.Stat. § 2392(3).

In so far as the defendant Burnett is concerned, there is just one question for determination: Was he engaged in a robbery or an attempted robbery? The evidence on that question was circumstantial; the only people in the tavern at the time of the shooting were Long and the defendants; at the time of the trial the former was dead and the latter did not testify.

The defendants had remained in the tavern after all the other customers had left and after the hour for closing. The only eyewitness was a woman who lived across the street and who, from a window in her home, could look through the front window of the tavern. She saw Long turn out the lights of the illuminated signs in the tavern window. Seconds later her attention was again directed to the tavern and she saw Burnett walk behind the bar toward the cash register and toward Long, exchanging shots with him. No explanation to meet the obvious inference of attempted robbery was offered by any witness at the trial, except that officers testifying as to statements made by Burnett said that he had told them that Long had called him, Burnett, a vile name; that he told Long that no one could call him such a name and get away with it, and reached over the bar and hit Long; and that he had started to leave the tavern, when Long pointed a gun at him. Defense counsel skilfully and adroitly used this statement as a defensive theory and asked an instruction on self-defense.

The state was not bound by the self-serving statements of the defendant, even though they were offered by its own witnesses. State v. Williams, 142 Wash. 673, 253 P. 1074. Had Burnett taken the stand and testified in the same tenor as his statements to the officers, the issue of self-defense would have been Before the jury; but his unsworn, self-serving statements to the officers did not warrant an instruction on self-defense.

Nor was there any evidence to warrant submitting the theory of manslaughter to the jury. See discussion in State v. Cooley, 165 Wash. 638, 5 P.2d 1005.

Although the state attempted to prove that there was an actual robbery and that money had been taken by the defendants, we do not believe that the evidence presented was sufficient to establish that fact. However, the jury was justified in concluding that Burnett had been engaged in an attempted robbery; and in our opinion the evidence was sufficient to sustain his conviction on the charge or murder in the first degree.

As to the defendant Smotherman, a more difficult problem is presented. He went to the tavern with Burnett and sat next to him drinking beer at the bar. He told the officers that he had gone to the men's room in the rear of the tavern and when he came out the shooting affray was in progress; that he crawled on the floor most of the length of the bar and then ran out of the tavern after the shooting stopped. He...