State v. Cogswell

• Decision Date: 21 May 1959
• Docket Number: No. 34525,34525
• Parties: STATE of Washington, Respondent, v. Billie Melvin COGSWELL, Appellant.
• Court: Washington Supreme Court

Page 240

54 Wn.2d 240

339 P.2d 465

STATE of Washington, Respondent, v. Billie Melvin COGSWELL, Appellant.

No. 34525.

Supreme Court of Washington, Department 2.

May 21, 1959.

Rehearing Denied July 29, 1959.

Walthew, Warner & Keefe, Seattle, for appellant.

Charles O. Carroll, Joel A. C. Rindal, Anthony Savage, Jr., Seattle, for respondent.

WEAVER, Chief Justice.

There is undisputed evidence, which, if believed by the jury, supports the conclusion that Billie Melvin Cogswell, defendant-appellant, shot his wife, Florine, the bullet passing through her body and injuring their small daughter, Christine, whom she was shielding; shot at, but missed his mother-in-law, Mrs. Gaukroger, then 'pistol-whipped' her; and attacked his father-in-law with a knife or dagger. Defendant and his wife were having marital difficulties. Mrs. Cogswell had commenced an action for divorce, and she and their daughter were staying with Mrs. Cogswell's parents.

In the opening brief, counsel for defendant states that

'* * * the appellant clearly and unequivocably conceded that the acts of the morning of October 26, 1956, did occur.'

Defendant was charged with three counts of assault in the first degree, allegedly committed against his wife, his daughter, and his mother-in-law; and one count of assault in the second degree, allegedly committed against his father-in-law. To these charges, defendant pleaded 'not guilty' and 'not guilty by reason of mental irresponsibility,' in accordance with the provisions of RCW 10.76.020.

After a six-day trial and almost eight hours of deliberation, the jury found defendant guilty on all counts.

Six of defendant's seven assignments of error are directed to all counts. The other applies only to count III, which charges assault with intent to kill the child, Christine. Analyzed in the order in which we will discuss them, the assignments of error appertain to (1) alleged misconduct of the deputy prosecuting attorney during trial; (2) five instructions given to the jury; and (3) exclusion of certain testimony.

Defendant contends that twenty-three remarks, made by the deputy prosecuting attorney in the course of a six-day trial, were contrary to certain canons of professional conduct, were prejudicial, and deprived him of a fair and impartial trial in violation of the state and Federal constitutions. To fourteen of the incidents, counsel for defendant made no objection, but now claims that to have made objection would have prejudiced his cause.

As a general rule, this court will not consider an assignment of error based upon alleged misconduct of a prosecuting attorney unless the aggrieved party has made timely objection and requested an instruction that the jury disregard the incident. State v. Taylor, 1955, 47 Wash.2d 213, 287 P.2d 298. An exception to the rule is found in those cases where the misconduct has been so flagrant that an instruction could not cure it. State v. Case, 1956, 49 Wash.2d 66, 72, 298 P.2d 500, and cases cited. If such be the case, then the aggrieved party has not received a fair trial. See Ryan v. Ryan, 1956, 48 Wash.2d 593, 600, 295 P.2d 1111.

Some of the questioned incidents were neither errors of law nor breaches of the canons of professional conduct; some were, perhaps, not in good taste, but innocuous. None were so flagrant that they could not have been cured by an instruction. When read in context, there is nothing to support the conclusion that defendant did not have a fair trial by reason of the questioned incidents. We find no merit in defendant's first assignment of error.

Defendant's second assignment of error is directed to instruction No. 13, which defines assault as 'an attempt to use force,' and points out that 'apprehension created in the mind of the person assaulted' is an element of assault. It appears that the instruction is almost a verbatim extract of the law announced in State v. Rush, 1942, 14 Wash.2d 138, 127 P.2d 411.

In the trial court, defendant excepted to this instruction on two grounds: First, that there is no charge in the instant case of an 'attempt to use force,' and second, the instruction fails to differentiate between first and second degree assault.

On appeal, defendant now contends that 'apprehension created in the mind of the person assaulted' is improperly included and overemphasized.

An assignment of error against a given instruction, predicated on a theory not submitted to the trial court at the time exception is taken thereto, will not be considered on appeal. State v. Lyskoski, 1955, 47 Wash.2d 102, 111, 287 P.2d 114.

The day before the shooting, defendant telephoned his estranged wife at her mother's home and asked in which bedroom she was sleeping. Mrs. Cogswell advised her husband that she and their daughter slept in twin beds in a certain room.

The day of the shooting, the child awakened about 7:00 a.m. and went downstairs to get her dog. She returned to the bedroom about 7:15 a.m. A few moments later defendant entered the bedroom, closed the door behind him, and pulled a revolver from his belt. Mrs. Cogswell grabbed the child. Defendant fired, the shot struck Mrs. Cogswell in the back, passed through her body, and struck the child.

Defendant's third assignment of error is directed to instruction No. 15, which states:

'I instruct you that if you find that the defendant, with intent to kill a particular individual, shot or struck at that individual with a firearm, and by mistake, accident or inadvertence the charge or blow also took effect upon a second individual, in the eyes of the law the intent to kill was transferred to the second individual as well; and the defendant is just as guilty as if he had originally intended to kill the second individual also.'

Defendant argues that the instruction is erroneous because, in the absence of statute, the doctrine of transfer of intent is not applicable to specific intent crimes. This facet of the case springs from an unusual factual situation. The twin beds occupied by Mrs. Cogswell and the daughter were next to each other.

Mrs. Cogswell testified that

'* * * I grabbed Christine and pulled her to my bed and laid over her, and then he shot me.'

Counsel for the defendant, however, when propounding a hypothetical question to one of the experts, stated

'That she either threw herself across the child Christine in the adjacent bed--these were twin beds which were pushed next to each other--or else pulled the child over and put her body across the child. That there was a shot fired.'

The issue raised by the instruction appears to present a question of first impression in this jurisdiction. Two conflicting rules are well stated in 26 Am.Jur., Homicide, § 602, p. 580:

'There is a sharp difference of opinion as to whether a conviction of assault with intent to kill may rest upon proof of intent against any person generally, or whether it must be against the person assaulted. According to one group of decisions, the very essence of the crime is the specific intent to take the life of the person assaulted, and it is vigorously maintained that a person who, while shooting at or assaulting another with intent to kill him, unintentionally injures a third person is not guilty of the offense of assault with intent to kill the third person. Many courts, however, deem the rule stated to be impracticable in the administration of the law, and its foundation to be too subtle to be adopted with safety. These courts assert that although the defendant inflicted the injury on a third person unintentionally, he may nevertheless be found guilty of an assault with intent to kill or murder. Under this rule, if A shoots at B and hits C, he may be convicted of an assault with intent to kill B. Even under the former view, a mistake in the identity of the person assaulted does not relieve of responsibility. Thus if A, intending to murder B, shoots and wounds C, he is guilty of an assault with intent to murder C.'

Factually, the instant case in not within the orbit of either rule set forth in 26 Am.Jur. 580, supra. This is not a case where A shoots at B with intent to kill, but, by mistake, accident, or inadvertence, misses A and injures C. Whom did defendant assault with intent to kill? Was it his wife, his daughter, or both at the same time? There is evidence, if believed by the jury, that defendant intended to kill both of them, for one of the policemen testified that defendant told him

'* * * he only took three shells with him, three rounds of ammunition, and he was going to use one on his wife, one on his daughter and one for himself,'

that the mother and daughter were close together; that they were only a few feet from defendant, who was standing at the foot of the bed; that both were within the line of fire of defendant's gun; that the same shot from defendant's .38-caliber revolver, fired at close range, hit both human beings. That the shot pierced one and hit the other is of no consequence. The situation is the same as if defendant had used a scatter gun or thrown acid that covered both.

Under count III of the information, there is sufficient evidence, together with proper instructions, to support defendant's conviction of...