State v. Buttry, 27397.

• Decision Date: 01 June 1939
• Docket Number: 27397.
• Citation: 90 P.2d 1026,199 Wash. 228
• Parties: STATE v. BUTTRY.
• Court: Washington Supreme Court

90 P.2d 1026

199 Wash. 228

STATE v. BUTTRY.

No. 27397.

Supreme Court of Washington

June 1, 1939

Department 1.

Paul Buttry was convicted of first degree murder, and he appeals.

Affirmed.

Appeal from Superior Court, Grays Harbor County; Wm. E. Campbell judge.

W. H Abel, of Montesano, and T. H. McKay, W. J. Murphy, and A Emerson Cross, all of Aberdeen, for appellant.

Stanley J. Krause, of Montesano, and Paul O. Manley, of Aberdeen, for the State.

ROBINSON Justice.

On June 8, 1938, the appellant, Paul Buttry, shot and killed Hugh Warren, at Hoquiam, Washington. At the end of a long trial in which the testimony of more than sixty witnesses was taken, Buttry was convicted of first degree murder, and sentence of death imposed. Some of the twenty-one errors assigned on appeal are of such a nature as to necessitate a comprehensive review of the evidence.

Sometime about nine o'clock on the evening of June 8th, Buttry entered the Chittwood tavern, in Hoquiam, and sat down at the long counter, or bar, which runs lengthwise of the room. His seat was about three or four removed from the entrance door. He remained there for a considerable time, drinking wine in moderation and talking in a natural manner to various acquaintances. About ten, or just Before , Hugh Warren came in. As he passed down the aisle between the counter and the wall, he stopped and put his hand on the shoulder of an acquaintance who was sitting immediately at Buttry's left, paused for a few minutes' conversation, then went to the rear of the room, took a seat, and ordered a cup of coffee. There were, perhaps, fifteen people in the tavern, and substantially all of them knew both men personally or by sight. Neither Buttry nor Warren appeared to pay any attention whatever to the other. About ten minutes after ten, Warren left by the front door.

As Warren went out, Buttry arose, and, as several witnesses expressed it, 'followed' him. Almost immediately, as some testified, or within a very short time, as others said, or in about a half a minute, as one witness estimated, a burst of gun fire was heard from outside the building. It was so rapid that many thought someone had set off a bunch of firecrackers. As described by at least ten witnesses, the formula was invariably the same, two quick shots, a perceptible pause, but so slight that no one would attempt to measure it by any unit of time, and then a burst of fire so rapid that the individual shots could not be counted.

The sound of firing came from the Myrtle street side of the building. There was a strip of gravel along that side, used for parking purposes; beyond that, the sidewalk, and beyond that, the roadway. All of this space was well lighted by floodlights mounted on a tall pole. A witness, who was standing by one of the windows, testified that he looked out quickly upon hearing the first shots, and saw a man lying on his back on the sidewalk, and another man standing over him shooting him in the face. When his pistol was emptied, the man ran toward the back of the building and climbed into a parked car. By the time the other occupants of the tavern had gotten to the windows or rushed outside, he had disappeared. Within a few minutes, the appellant, Buttry, hurried into the Hoquiam police station and, handing Sergeant Dicken an automatic pistol, said, according to Dicken and another witness: 'I have just killed the dirtiest rat that ever lived.' At about midnight, Buttry was questioned at length by the prosecuting attorney, and a transcript of the questions and answers is in the record as an exhibit. We quote from it as to what followed after Buttry followed Warren from the tavern, as follows:

'A. Well, we came out and walked around this way (indicating left) and I told him--we got right here--(indicating) I would like to talk to him. He said, 'O. K.' and we turned and came this way (indicating) and we walked right along, and he turned around on me like this (indicating about-face). He said, 'What the Hell do you mean?' And I said, 'I would like to talk to you.' And he walked on, and he said 'O. K.', and we walked on two or three steps, I guess, and I just can't remember just exactly what he said. He had his hand in his pocket. He turned on me, and he said, 'I don't have to talk to you, you son-of-a-bitch.' He turned on me with his gun. I went for my gun and I shot him.

'Q. Did you see the gun in his pocket? A. No he had his hand in his pocket, like this (indicating). He was going to shoot me through his pocket. He throwed his gun around on me. He turned around (indicating about-face) like that, and I went for my gun, as soon as I could, and I kept ashooting.'

Warren, in fact, had no gun. Buttry, however, pleaded self defense and stoutly maintained at the trial that, from the position which Warren assumed when he whirled around with his right hand in his coat pocket and with the skirt of his coat thrust out in his direction, he honestly believed that Warren had a gun in that pocket and was about to shoot him without taking the time to draw it.

The evidence showed conclusively that but seven shots were fired, since Buttry's automatic held but eight cartridges, and an unexploded one was found jammed in the barrel of the pistol when he turned it in at the police station. It is beyond dispute that all seven shots struck Warren in the face, one in the right eye, two in the right cheek, three just under, and to the right of, the point of his chin, and one under the left nostril. The evidence also is that any one of the seven bullets would have been fatal. The coroner's report, which the defense itself offered in evidence, reads, in part, as follows:

'Seven bullet wounds of entrance were found on the face.

'The right hand bore a wound in which one hole was at the root of the thumb and the other at the ulner side of the hand.'

The second sentence above quoted is the most important piece of evidence in the case, for it proves conclusively and beyond all possibility of dispute that Warren's right hand was not in his right coat pocket, but in front of his face when at least one of the fatal shots was fired. There was a great deal of evidence from which the jury could reasonably infer that Warren did not have his right hand in his pocket at all, but was using it to manipulate a lighted cigarette. When the patrons of the tavern rushed to the windows, at least three of them, according to their testimony, saw smoke rising from a lighted cigarette lying on Warren's breast a few inches from his right hand. At least ten witnesses testified to its presence. Witnesses, including police officers who arrived promptly, said Warren's right hand was lying on his chest a few inches from a burning cigarette, and that his left hand was in his coat pocket. The vest which the deceased wore is in the record, and shows a hole burned through it near the left breast pocket. Nor does the matter of what Warren was doing with his right hand depend upon inference alone. A witness, who was approaching the entrance of the tavern, saw the shooting, which occurred almost directly under a floodlight, and testified that, at the time the shots were fired, Warren was holding a lighted cigarette in his right hand, and that he was holding that hand in front of his face as 'if warding off a blow.' He further testified that the pistol was held from two to two and one-half feet from Warren's face. Describing the shots, he said: 'The first two were spaced far enough apart to count. After that, it was too rapid to count.'

A number of witnesses, including the defendant himself, testified that Warren was right-handed. Eight or ten witnesses said that he had a habit of keeping his hands in his coat pockets when standing around, particularly his left hand.

The prosecution introduced evidence of threats by Buttry against the life of Warren, made to ten different people during the six months preceding the shooting, three of them being accompanied by the display of a pistol. It was testified that, on some of these occasions, Buttry said he would kill the son of a bitch; on others, that he would shoot him and leave him lie like a rat. On account of the fact that a new trial is claimed on the ground that the prosecutor's closing argument was prejudicially violent, it is, unfortunately, necessary to quote some of these threats. A fellow workman of Buttry testified that Buttry said to him: 'If Hugh Warren did not quit talking, if he did not quit telling that I broke up his home, I will kill the son of a bitch.' Charles Toler, the father of Catherine Warren, ex-wife of Hugh Warren, testified that Buttry said, in a conversation with him: 'Some day I am going out gunning and when I come back there will be no Hugh Warren.' Robert Davies, husband of another of Toler's daughters, testified that Buttry, speaking of Hugh Warren, said: 'I will kill the son of a bitch,' and Mrs. Davies, Catherine Warren's sister, testified that Buttry said, speaking of Hugh Warren, and in the presence of her sister Catherine, his exwife: 'I will kill the son of a bitch. I will kill him and cut his heart out and fry it until it sizzles.'

Buttry denied making some of the threats testified to by witnesses for the state and toned down the language of others. What remained after his explanations and denials the defense sought to counteract by requesting the following instruction the refusal of which forms the basis of one of the assignments of error: 'If you believe from the evidence, or entertain a reasonable doubt, that defendant made any threat or threats, not with intent to carry any such threat or threats into execution, but merely to the end of warning Hugh Warren and to cause him to desist from circulating statements concerning the defendant or Catherine...