State v. Clark

• Decision Date: 03 October 1946
• Docket Number: 29928.,29927
• Parties: STATE v. CLARK et al.
• Court: Washington Supreme Court

173 P.2d 189

26 Wn.2d 160

STATE v. CLARK et al.

Nos. 29927, 29928.

Supreme Court of Washington

October 3, 1946

Department 1

Rehearing Denied Nov. 18, 1946.

John Henry Clark and Annie Clark were convicted of murder in the first degree, and they appeal.

Affirmed.

MILLARD J., dissenting.

Appeal from Superior Court, King County; James B Kinne, judge.

Will Lanning and Bill Lanning, both of Seattle, for appellants.

Lloyd Shorett, J. Edmund Quigley, and Herbert H. Davis, all of Seattle, for respondent.

SCHWELLENBACH Justice.

The defendants were charged with first-degree murder, as follows:

'They, the said John Henry Clark and Annie Clark, and each of them, in the County of King, State of Washington, on or about the 26th day of October, 1945, with a premeditated design to effect the death of one Sam Katz, a human being, and while then and there engaged in the commission of the crime of Larceny, or in attempting to commit the crime of Larceny, wilfully, unlawfully and feloniously did strike, beat, cut and wound the said Sam Katz, with an axe and knife then and there held by the said John Henry Clark, thereby mortally wounding the said Sam Katz, from which said wounds the said Sam Katz then and there died;

'Contrary to the statute in such case made and provided, and against the peace and dignity of the State of Washington.'

Upon trial of the charge, the jury returned a verdict of murder in the first degree as to each of the defendants. From judgment and sentence entered as to each of them on the verdicts, both defendants have appealed.

The facts may be summarized as follows:

Sam Katz, aged seventy-six years, was the proprietor of a second hand store located at 653 Jackson street, Seattle. He lived alone on a balcony at the back of the store. Anner Finkle was associated with him in the business. Finkle usually was in the store from 9 in the morning until 10 or 11 at night. On the evening of October 26, 1945, Katz seemed quite anxious for Finkle to leave--reminding him of the time on a couple of occasions. About 11 o'clock, Finkle left, Katz accompanying him to the front door and locking it by shoving a bolt through the hasps placed on the inside of the door.

Shortly after 8 o'clock on the following morning a young Negro, William Thomas, entered the store for the purpose of looking at an overcoat. The door was unlocked. No one came to wait on him. He slammed the door, turned on the radio, and played the phonograph, all for the purpose of raising someone. There being no response, he walked toward the rear of the store, where he saw a coat lying on the floor with blood dripping on it from above. He ran out, went to a nearby hotel and called the police.

Upon the arrival of the officers, they went to the rear of the store, where they observed the coat and the blood dripping from the balcony. They went up to the balcony, which Katz used as a bedroom, found the light burning, and saw the body of a man, clad only in an undershirt, lying on the floor, with a large wound on the top of his head. His left ear was black and bruised and there were cuts on his neck and throat. An autopsy revealed that the wound on the head had been caused by the use of a blunt instrument, but which would not necessarily have resulted in death. The autopsy further disclosed that the man's throat had been cut--four separate strokes on the left side and seven on the right. The cuts had gone sufficiently deep, passing over the top of the Adam's apple, to sever the common carotid artery on the left side, also to sever the windpipe and the gullet. This caused death within a few minutes.

A double-bitted ax with blood on one of the bits, was found resting against the wall near the lavatory. It was free of finger prints. A man's handkerchief was found in the lavatory bowl. The water in the sink was running full force on some books and a whisky bottle placed in the basin of the sink. The large door of the safe was ajar and the inner door unlocked. Several partially burned matches, as well as two .32-caliber pistol cartridges, were on the floor in front of the safe.

When Mr. Finkle arrived that morning, he identified the body as that of Sam Katz. He discovered that about $1700, contained in a shoe box, as well as several revolvers, was missing from the safe. The money taken was in denominations of ten, twenty, and fifty-dollar bills and one one-hundred-dollar bill.

In the early part of November, 1945, Franklin Luster, a Negro, was arrested, and a black-handled revolver was found in his possesson. This was identified as one of the revolvers taken from the safe the night Katz was murdered. When questioned by the police, Luster stated that he had gotten it from John Henry Clark. He then took the police to the Clark residence, and Clark and his wife were placed under arrest.

Thomas Collins, a taxicab driver in Bremerton, identified the appellants as a couple he had picked up as 'fares' in Bremerton on October 31, 1945, and took to Tacoma in search of a used car. At an automobile agency there, they bought a Buick car for $1500, plus the tax, paying therefor in cash--mostly in ten and twenty-dollar bills, some fifties, and one one-hundred-dollar bill. They then followed Collins back to Bremerton, paying him $45 for the trip and giving him a ten-dollar tip.

Annie Clark had purchased a watch from Finkle in July or August of 1945 for $25 making a five-dollar deposit and paying the balance a week later. On October 16, 1945, she pawned this watch to Finkle for $12; and, on October 23d, she asked Katz and Finkle to hold the watch for another week until her husband received his check.

On October 24, 1945, she and her husband came into the store. She stopped to look at some jewelry. He went to the back of the store, ostensibly to look at a raincoat. The coats were located near the safe. About 10 o'clock on the evening Before Katz was killed, Finkle had gone out to a restaurant next door, and saw both appellants standing in the doorway of the Evergreen hotel, located on the second and third floors of the same building where the store was.

This comprises the evidence, with the exception of certain admissions made by the appellants which will be discussed later.

Appellants assign as error the giving of instruction No. 2:

'Under the laws of this State, the killing of a human being, unless it is excusable or justifiable, is murder in the first degree when committed with or without a design to effect death by a person engaged in an attempt to commit the crime of Larceny.

'You are further instructed that when one is charged with murder in the first degree in killing a human being while engaged in the commission of the crime of Larceny, it is not necessary for the State to show any premeditation or design to effect the death of the person killed by the person doing the killing.'

It is claimed that this instruction was erroneous as to appellant Annie Clark, for the reason that there was no testimony that she had attempted to, or did, commit the crime of larceny or had 'a premeditated design to effect the death of one Sam Katz.'

Annie Clark was being tried as an acessory. Remington's Revised Statutes, § 2260, makes an accessory a principal.

Error is claimed in the giving of instruction No. 10 which reads as follows:

'To convict the defendant Annie Clark of the crime of Murder in the First Degree, the State must have satisfied you from the evidence beyond a reasonable doubt of all of the following elements:

'(1) That the defendant John Henry Clark, on or about the 26th day of October, 1945, while engaged in the commission of the crime of Larceny, or in attempting to commit the crime of Larceny, did strike, beat, cut and wound Sam Katz with an axe and knife;

'(2) That this act was done with a premeditated design to effect the death of Sam Katz;

'(3) That as a result of wounds so inflicted, said Sam Katz died on October 26, 1945;

'(4-b) That the defendant Annie Clark acted in concert with the defendant John Henry Clark in the killing of said Sam Katz, or

'(4-b) That the defendant Annie Clark, not being present, directly or indirectly aided, assisted, abetted, advised, encouraged or counselled the said killing of the said Sam Katz;

'(5) That Sam Katz was so killed in King County, State of Washington.

'If you find from all the evidence admitted in this case that the State has, as to the defendant Annie Clark, proved beyond a reasonable doubt elements (1), (2), (3) and (5) and, in addition thereto, either (4-a) or (4-b), then it will be your duty to return a verdict of Guilty of Murder in the First Degree, as to such defendant.'

Objection is made to subdivisions (4-a) and (4-b) of the instruction, because it was given in the alternate. It correctly stated the law. Subdivisions (4-a) and (4-b) could have been joined in one subdivision. The method used assisted and clarified the matter for the jury.

Another assignment of error is the giving of instruction No. 13, as follows: 'I instruct you that Before a homicide can be held excusable, four elements must be present: First, the homicide must have been committed by accident or misfortune; second, it must have occurred in the doing of a lawful act by lawful means; third, ordinary caution must have been observed by the person responsible for the killing; and fourth, this person must have acted without any unlawful intent. If any one of these four elements be eliminated from the factual situation, the homicide is not excusable within the meaning of the law.'

It is true that no evidence was introduced which would warrant giving an instruction covering excusable homicide. But this was not prejudicial to the appellants--it was to their benefit.

A more serious question arises...