State v. Cooley

• Citation: 165 Wash. 638,5 P.2d 1005
• Decision Date: 17 December 1931
• Docket Number: 23263.
• Court: United States State Supreme Court of Washington
• Parties: STATE v. COOLEY.

5 P.2d 1005

165 Wash. 638

STATE v. COOLEY.

No. 23263.

Supreme Court of Washington

December 17, 1931

Department 2.

Appeal from Superior Court, Snohomish County; Guy C. Alston, Judge.

Lester Cooley was convicted of manslaughter, and he appeals.

Affirmed.

John F Dore, of Seattle, and O. T. Webb, of Everett, for appellant.

Charles R. Denney, Francis W. Mansfield, and C. W. Jordan, all of Everett, for the State.

BEALS J.

Defendant was by information charged with the crime of murder in the first degree; the charging portion of the information reading as follows: 'He, the said Lester Cooley, in the County of Snohomish, State of Washington, on or about the 12th day of December, 1930, did then and there wilfully, unlawfully, and feloniously and by means of force and violence, and fear of injury, immediate and future, to the person and property of Goddard E. Gunderson, a human being, take certain personal property of said Goddard E. Gunderson, to-wit: papers and money, from the person of said Goddard E. Gunderson, and then and there, while engaged in the commission of said robbery heretofore alleged, said Lester Cooley did wilfully unlawfully and feloniously beat, strike and wound said Goddard E. Gunderson with his fists, a rock and other means, the exact nature of which is to the Prosecuting Attorney unknown, and said Lester Cooley did thereby mortally wound the said Goddard E. Gunderson, of which said mortal wounds the said Goddard E. Gunderson then and there died on or about the 12th day of December, 1930, and the killing of said Goddard E. Gunderson was not excusable or justifiable, contrary to the form of the statute in such case made and provided and against the peace and dignity of the State of Washington.'

The trial court, in addition to submitting to the jury the question of defendant's guilt or innocence of the crime with which he stood charged, over the objection of defendant, instructed the jury that they might find defendant guilty of the crime of manslaughter, as a lesser included offense. Under these instructions, the jury returned a verdict finding the defendant guilty of the crime of manslaughter, and, from a judgment entered pursuant to this verdict and sentence thereon, defendant appeals.

Appellant contends that the record contains no evidence sufficient to sustain a verdict of guilty of manslaughter, and that the court erred in submitting to the jury, over appellant's objection, the question of whether or not appellant was guilty of that crime.

By the verdict of the jury, all questions as to any robbery or attempted robbery of the deceased by appellant have been eliminated, and the question of whether or not a defendant, being accused of murder in the first degree, the charge as laid being based upon a killing alleged to have been committed in the course of the perpetration of a robbery, can, under any evidence, be found guilty of manslaughter, is squarely presented. Appellant at all times contended that the only verdicts which could be returned were a verdict of guilty as charged or a verdict of not guilty, and preserved his rights by appropriate motions, exceptions to the instructions given, and exceptions to the refusal of the trial court to give requested instructions in accord with this theory of the case.

From the testimony it appears that appellant and several other men, including the deceased, one Gunderson, on the evening Gunderson met his death, consumed considerable intoxicating liquor. Appellant admitted that during the course of the evening he and Gunderson engaged in an altercation concerning the matter of payment for some of the liquor which had been consumed by the party. Appellant testified that Gunderson struck at him, and that he (appellant) then struck Gunderson 'not over twice.' From the evidence, however, the jury may well have found that the deceased had been struck several times. It appears from the testimony that Mr. Gunderson was a strong, powerful man, and that the blows which resulted in his death from cerebral hemorrhages may not have been of extreme severity, or of such a nature as to be characterized as 'deadly.' Appellant testified that the members of the party were intoxicated, and that in the fight between him and Gunderson the blows struck were with the fists only. We may say in passing that the evidence introduced by the state as to the alleged robbery of Gunderson by appellant was not entirely satisfactory, and that the jury was justified in failing to find that the evidence proved beyond a reasonable doubt that appellant was guilty as charged.

Appellant argues that it has never been held that, under an indictment or information charging murder in the first degree, based upon an alleged homicide committed in the course of the perpetration of a felony, the accused can be convicted of any crime other than that charged. It is, of course, true that the submission to the jury of the question of whether or not the accused may be convicted of a lesser crime than that with which he stands charged, where there is no evidence to support conviction of such lesser crime, and where the accused is convicted of the lesser offense, constitutes reversible error, and that such a verdict will be set aside.

Appellant was charged under paragraph 3 of section 2392, Rem. Comp. Stat., which reads as follows: 'The killing of a human being, unless it is excusable or justifiable, is murder in the first degree when committed either--* * *

'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, a robbery, rape, burglary, larceny or arson in the first degree. * * *'

By section 2393, murder in the second degree is defined as follows:

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

'(1) Committed with a design to effect the death of the person killed or of another, but without premeditation; or

'(2) When perpetrated by a person engaged in the commission of, or in an attempt to commit, or in withdrawing from the scene of, a felony other than those enumerated in section 2392.'

While manslaughter is denounced by section 2395 in the following language: 'In any case other than those specified in sections 2392, 2393 and 2394, homicide, not being excusable or justifiable, is manslaughter.'

It is evident that a homicide committed with intent to kill is, if an offense at all, murder in either the first or second degree, and that the voluntary killing 'upon sudden heat,' which was formerly included in the crime of manslaughter, no longer falls within that classification. State v. Palmer, 104 Wash. 396, 176 P. 547, 548. As was said in that case: 'It would seem from this that the voluntary killing upon sudden heat, which was formerly included in the crime of manslaughter, has been taken out of that classification by the act, and as the law now stands, every killing which is accompanied by a design to kill is either murder in the first degree or murder in the second degree, depending upon whether that design was or was not accompanied by premeditation. No longer is the intentional killing upon sudden heat, or the intentional killing, no matter how provoked, classified as manslaughter. And as soon as it appears that the killing was with a design to effect death, the element of manslaughter disappears from the case. That grade of homicide is characterized by the fact that the one guilty of it possessed no design to kill. If the purpose to kill is present, the offense must be murder in one of its degrees.'

This doctrine has been reaffirmed by this court in the cases of State v. Hoyer, 105 Wash. 160, 177 P. 683, and State v. Sandvig, 141 Wash. 542, 251 P. 887.

Manifestly in a case in which the accused stands charged, as here, with murder in the first degree, based upon a killing alleged to have been committed in the course of the commission of one of the offenses mentioned in paragraph 3, section 2392, supra, and the evidence clearly shows the commission, or attempted commission, of the robbery, burglary, etc., there would be no occasion for the submission to the jury of the question of whether or not the accused was guilty of the crime of manslaughter. It is not the intent of the law that a jury may be permitted to find a defendant guilty of this crime by way of a compromise, and such a verdict should be permitted only in cases where the evidence affords a basis therefor. Appellant cites the cases of State v. Kruger, 60 Wash. 542, 111 P. 769; State v. Palmer, supra; State v. Daniels, 119 Wash. 557, 205 P. 1054; State v. Whitfield, 129 Wash. 134, 224 P. 559, 562; State v. Landaker, 138 Wash. 267, 244 P. 555; State v. Sandvig, supra; as well as cases from other jurisdictions. In the cases relied upon by appellant, it is clear that there was no...