State v. Clark

• Decision Date: 16 November 1944
• Docket Number: 29351.
• Citation: 21 Wn.2d 774,153 P.2d 297
• Parties: STATE v. CLARK.
• Court: Washington Supreme Court

153 P.2d 297

21 Wn.2d 774

STATE v. CLARK.

No. 29351.

Supreme Court of Washington

November 16, 1944

Department 1.

Woodrow Wilson Clark was convicted of first-degree murder, and he appeals.

Affirmed.

Appeal from Superior Court, Spokane County; Louis F. Bunge, judge.

Lucius G. Nash and Frank J. Blade, both of Spokane, for appellant.

Leslie M. Carroll and Clarence P. Smith, both of Spokane, for respondent.

MILLARD Justice.

Defendant was, by information in two counts, charged with the crime of murder in the first degree. The pertinent portion of the information reads as follows:

'That the said defendant, Woodrow Wilson Clark, in the County of Spokane, State of Washington, on or about the 15th day of January, 1944, then and there being, did then and there willfully, unlawfully and feloniously without excuse or justification, and with a premeditated design to effect the death of one T. P. Dillon, and while then and here unlawfully engaged in an attempt to commit and in committing and in withdrawing from the scene of the rape of one Jane Staples, did then and there make an assault upon the said T. P. Dillon with a hatchet, which said hatchet he, the said defendant, then and there held in his hand, and with the said hatchet so held in his hand the said defendant did then and there strike the said T. P. Dillon repeatedly in the head, and in the manner and by the means aforesaid did inflict upon the said T. P. Dillon mortal wounds, of which said mortal wounds the said T. P. Dillon did then and there die.'

'That the said defendant, Woodrow Wilson Clark, in the County of Spokane, State of Washington, on or about the 15th day of January, 1944, then and there being, did then and there willfully, unlawfully and feloniously, without excuse or justification, and with a premeditated design to effect the death of one Flora Gertrude Dillon, and while then and there unlawfully engaged in an attempt to commit, and in committing and in withdrawing from the scene of the rape of one Jane Staples, did then and there make an assault upon the said Flora Gertrude Dillon with a hatchet, which said hatchet he, the said defendant, then and there held in his hand, and with the said hatchet so held in his hand the said defendant did then and there strike the said Flora Gertrude Dillon repeatedly in the head, and in the manner and by the means aforesaid did inflict upon the said Flora Gertrude Dillon mortal wounds, of which said mortal wounds the said Flora Gertrude Dillon did thereafter and on or about the 19th day of January, 1944, die.'

Trial to a jury resulted in a verdict finding defendant guilty on both counts as charged in the information and that the death penalty shall be inflicted upon him. Defendant has appealed from the judgment and sentence entered against him upon the verdict.

Error is first assigned on trial court's refusal to sustain demurrer to the information on the ground that the information is duplicitous and on denial of motion to strike from the information 'and while then and there unlawfully engaged in an attempt to commit, and in committing and in withdrawing from the scene of the rape of one Jane Staples.'

The question raised by appellant is foreclosed. The information is based on the statute (Rem.Rev.Stat. § 2392), the material language of which is as follows:

'The killing of a human being, unless it is excusable or justifiable, is murder in the first degree when committed either----

'1. With a premeditated design to effect the death of the person killed, or of another; or, * * *

'3. Without design to effect death, by a person engaged in the commission of, or in an attempt to commit, or in withdrawing from the scene of * * * rape * * *.'

There is not an erroneous charging of several offenses in one information. We have consistently held that an information like the one in the case at bar is valid. State v. Whitfield, 129 Wash. 134, 224 P. 559; State v. Hall, 185 Wash. 685, 56 P.2d 715; State v. Anderson, 10 Wash.2d 167, 116 P.2d 346; and State v. Montgomery, 16 Wash.2d 130, 132 P.2d 720.

The assignment that the court erred in giving instructions Nos. 6, 7, 8, 9 and 10 and in refusing to give appellant's requested instruction No. 5 is based upon the conclusion that the information is duplicitous. The information is not vulnerable to that assault upon it, therefore the assignment is without substantial merit. Clearly, the court did not err in refusing to give requested instruction No. 5 that, even if the jury found beyond all reasonable doubt that appellant did rape or attempt to rape, or withdraw from the scene of his rape of Jane Staples, if the jury could not find beyond all reasonable doubt that such fact, if any, was the proximate cause of the deaths of T. P. Dillon and Flora Gertrude Dillon, then the verdict should be not guilty.

Under the evidence the jury was warranted in finding that appellant killed T. P. Dillon and Mrs. Dillon while engaged in the commission of, or in attempting to commit, or in withdrawing from the scene of the rape of Jane Staples. It follows that, under the statute (Rem.Rev.Stat. § 2392), appellant would be guilty of murder in the first degree. It is unnecessary to review sustaining authorities.

It is next urged that the court erred in denying to appellant's counsel the right to examine the three typewritten exhibits which record the confessions made by appellant to police officers and to the prosecuting attorney.

It fairly appears from the three exhibits that appellant freely confessed that he murdered T. P. Dillon, Flora Gertrude Dillon and Jane Staples and that he mutilated Frank Wennette, the crimes being committed with a hatchet.

A prosecuting attorney is under no obligation to submit any evidence he has in his possession to counsel for a person charged with crime. State v. Payne, 10 Wash. 545, 39 P. 157. The state is not required to submit its evidence to counsel for the accused. The accused is not, as a matter of right, entitled to have for inspection Before trial evidence which is in possession of the prosecution. Such matter is peculiarly within the trial court's discretion with which we will interfere only when there has been a manifest abuse of discretion. State v. Allen, 128 Wash. 217, 222 P. 502; State v. Morrison, 175 Wash. 656, 27 P.2d 1065; State v. Ingels, 4 Wash.2d 676, 104 P.2d 944.

Counsel for appellant have not directed our attention to, nor has our examination of the record elicited, anything prejudicial to appellant as a result of the court's ruling.

The contention that appellant's motion for a bill of particulars should not have been denied is without merit. Language, as follows, in our opinion in State v. Anderson, 10 Wash.2d 167, 116 P.2d 346, 351, is apt in the case at bar:

'The state's case was necessarily based upon and built around the confession and admissions of appellant. We cannot conceive of any fact which the state, by way of bill of particulars or by way of making the information more definite and certain, could have furnished him that was not already locked up in his own breast.'

The contention that the court erred in denying the challenge to the sufficiency of the evidence and in denying the motion for directed verdict of acquittal is also without merit.

There is abundant competent evidence that, while engaged in the commission of, or in an attempt to commit, or in withdrawing from the scene of the rape of Jane Staples, appellant killed T. P. Dillon and Mrs. Dillon, which constitutes murder in the first degree under the statute (Rem.Rev.Stat. § 2392).

The confessions of appellant, which were not made under the influence of fear produced by threats, are clear. Appellant confessed that the evening of January 14, 1944, he went to a certain beer parlor in Spokane where he joined a group of persons consisting of T. P. Dillon, Mrs. Dillon, Mrs. Jane Staples, Ed. Johnson and Frank Wennette. After drinking beer at the place mentioned the group went to another beer parlor, which was next door to the Dillon's shop and residence. Jesse Hayford and Robert Hart then joined the party. At midnight the group, after purchasing several quarts of beer and a dozen eggs, went to the living quarters of the Dillons. T. P. Dillon objected to appellant's improper attentions to Mrs. Dillon and threatened appellant who confessed that it was his intention, if Dillon left the house, to go to bed with Mrs. Dillon.

About two a. m. January 15, 1944, Robert Hart obtained bacon from his apartment and the party, appellant building the fire, had a dinner or early breakfast of bacon and eggs. Thereafter most of the group continued to drink beer. Hart fell asleep in his chair awakening at four a. m. He, Ed. Johnson and Jesse Hayford then departed. Appellant, T. P. Dillon, Mrs Dillon, Frank Wennette and Mrs. Staples remained at the Dillon apartment. The parties retired to bed. Mrs. Dillon was lying on the bed next to the wall; next to Mrs. Dillon was her husband; next to him was Mrs. Staples and lying alongside of Mrs. Staples was appellant. During the early morning hours appellant renewed his attempts at sexual intercourse with one of the two women. All members of the party, except appellant--so he testified--were then asleep. Appellant did not know which one of the women was the object of his attentions at that time. His efforts aroused Dillon, who attempted to arise from the bed, whereupon appellant killed Dillon with a hatchet. Appellant then killed the two women. He said he started to depart from the bedroom when Wennette 'started for me and I hit him and I left after that.' Three of the persons attacked died as a result of their injuries. Frank Wennette had nine skull fractures. He was called as a witness but his injuries precluded his...