State v. Cooper

• Decision Date: 18 November 1946
• Docket Number: 29908.
• Citation: 26 Wn.2d 405,174 P.2d 545
• Parties: STATE v. COOPER.
• Court: Washington Supreme Court

174 P.2d 545

26 Wn.2d 405

STATE v. COOPER.

No. 29908.

Supreme Court of Washington

November 18, 1946

Department 2

Hearing Denied Jan. 25, 1947.

William Jennings Cooper and another were convicted of murder in the first degree and named defendant appeals.

Appeal from Superior Court, King County; Hugh Todd, Judge.

Miracle & Treadwell and Sullivan & Pruzan, all of Seattle, for appellant.

Lloyd Shorett, Max R. Nicolai, James D. McCutcheon, Jr., and John J. Kennett, all of Seattle, for respondent.

MALLERY Justice.

Appellant William Jennings Cooper, and Edward Ervin Mitchell, his codefendant who has not appealed, were jointly informed against for murder in the first degree. It was charged that 'They, * * *, and each of them, in the county of King State of Washington, on or about the 8th day of August, 1945, acting in concert with a premeditated design to effect the death of one Walter Bernard Foley, Jr., a human being, wilfully, unlawfully and feloniously, then and there did shoot, at, toward and into the body of the said Walter Bernard Foley, Jr., with a certain deadly weapon, to-wit: a .38 calibre revolver, then and there had and held by the said Edward Ervin Mitchell, from which said mortal wounds the said Walter Bernard Foley, Jr., then and there died; * * *.'

Pleas of not guilty were entered by both. During the course of the trial, Mitchell took the stand and turned state's evidence. The jury found both defendants guilty of the crime charged.

The state introduced evidence to show that the victim, Foley, was shot to death by a .38 calibre revolver at approximately 6:25 on the morning of August 8, 1945, at a point in King county 13 miles north of Seattle on the Kenmore-Juanita cutoff. Foley, a student at the University of Washington, had previously been employed as an investigator by the Washington state liquor control board, having been discharged for cause in July, 1945. His duties in that capacity had been to frequent speakeasies, make illegal purchases of liquor therein, and give evidence in subsequent prosecutions for liquor violations.

The appellant, Cooper, managed the Menlo Hotel in Seattle, and in the basement thereof, he operated the '614' or 'Madison' club, where liquor was illegally sold. Mitchell, Cooper's codefendant, was a newcomer to Seattle and a bartender by trade. Prior to August 8, 1945, he had attempted to obtain employment with appellant. At the time of the offense charged herein, he was merely a patron of the '614' club.

At about 11 p. m. on August 7, 1945, the '614' club was raided by the Seattle police, the visible liquor stock was confiscated, and the employees and patrons were booked and fined. Appellant, who had been absent at the time of the raid, returned from Cle Elum shortly Before midnight, and at about 1 a. m. on August 8th reopened the club. Mitchell had been caught in the raid but was among the first to return to the club and, upon its reopening, acted as bartender for a few minutes until the regular bartender returned and took over. Mitchell then reverted to his status as a patron and resumed his drinking.

Shortly after 1 on August 8th, Foley made his appearance at the door of the club and requested a membership card. He was refused a card but nevertheless was permitted to enter and to order a drink. Foley was recognized at once by Bob Farley, one of Cooper's bartenders, then off duty, as being an investigator. His suspicions aroused, Farley took Mitchell and another patron to a different club where Farley checked up on Foley's identity. Upon their return to the '614' club, Farley informed Cooper of Foley's connection with the liquor board. Cooper immediately confronted Foley with this information, whereupon Foley further identified himself by producing his driver's license and requested that they go somewhere to talk in private. Upon reaching Cooper's room Foley suggested that he could 'protect' Cooper. Cooper and Foley then left the '614' club and visited the '92' club where, in separate conversations with the owner, Ray Murray, the idea was conveyed to Cooper that he had better pay Foley for protection. Foley and Cooper returned to Cooper's room where Cooper paid Foley $100 and they then went back downstairs to the '614' club.

At Cooper's request, Foley was thereafter and without his knowledge served double-strength drinks. Cooper, who carried a revolver and was very disgruntled, made it known to several people in the club that he intended to get even with Foley. Subsequently, Cooper offered Mitchell $500 to help him accomplish this purpose. Mitchell, who was penniless, readily agreed to assist. Both Foley and Mitchell were very drunk when, at a time between 4:15 a. m. and 4:45 a. m., they and Cooper set out from the '614' club in Foley's car. Upon arriving at the scene of the crime, Cooper, who was driving, stopped the car. Mitchell stepped out from the right side of the car and walked toward the rear, intending to relieve himself. Cooper walked around to meet him and asked, 'Is this a good place to dump him?' Mitchell agreed that 'it was as good as any' and they proceeded to remove the half-conscious Foley from the car. Mitchell testified:

'Q. Then tell us what happened. A. He got out of the car and took several steps to the rear of the car, which would be toward the Bothell Highway, and Cooper had the gun on him at that time, and he was cursing him, his exact words I don't know--and I wouldn't prefer to state them in front of the jury--but he was cursing him and he said 'Now you are going to get yours'. Those were the only words I remember him saying.

'Q. What happened at that time? A. Foley had his hands lifted about shoulder high, maybe a little higher (indicating), and he brought one on down, I don't know which it was, toward the inside of his coat.

'Q. What happened then? A. And when he did that I grabbed Cooper's gun from his hand and shot him.'

Cooper and Mitchell left Foley where he fell, returned to the north end of Seattle in Foley's car, abandoned the car in a residential district, boarded a city bus to the downtown district whence they traveled by taxicab to their respective hotels, having separated in the downtown area between 6:50 a. m. and 7:10 a. m. Later that day Cooper paid Mitchell a portion of the promised $500 and admonished him to get out of town. It was conclusively proved that Cooper's revolver was the murder weapon.

The defense was alibi. Cooper produced five or six witnesses who testified that he was in or about the Menlo Hotel at the time the crime was committed.

Appellant makes fifteen assignments of error, none of which questions the sufficiency of the evidence to sustain the verdict.

The assignments chiefly relied upon by appellant relate to his contention as set forth in his brief that 'The appellant, Cooper, was charged with being at a certain place at a certain time and then and there acting in concert with the defendant, Mitchell, as a principal in the commission of the alleged murder; and it may be further observed that the amended information did not in any manner charge appellant with aiding, assisting, abetting, advising, encouraging or counseling the prepetration of the alleged crime. For the dual reason that the amended information charged specifically that the appellant was in a particular place at a particular time and engaged as a principal acting in concert with his codefendant in the commission of the alleged crime, and, secondly, from the failure to allege any facts concerning aiding and abetting, the appellant was not put upon notice of any such charge or that any such testimony would be offered.'

Appellant further contends that under such circumstances it was error to submit to the jury instructions relating to aiding and abetting.

In support of his arguments appellant cites the early case of State v. Gifford, 19 Wash. 464, 53 P. 709, the rule of which, in subsequent decisions of this court, has been confined to its own peculiar set of facts and does not apply to the situation at bar.

The information in the Gifford case, supra, charged the defendant as a principal with the crime of rape 'committed as follows * * * then and there * * * unlawfully and feloniously did carnally know one Flossie Fuller * * *.'

The proof, however, showed that Grifford was a procurer only and was not present at the scene of the crime of rape. It was there held that the information was bad, the court saying: 'The accused may be indicted, and must be under the provisions of this laws, as a principal (referring to Bal.Code sec. 6782 abolishing distinctions between principals and accessories) but the acts constituting the offense must be set forth.'

A critical analysis of the Gifford case, supra, is to be found in State v. Nichols, 148 Wash. 412, 269 P. 337, 338, where three boys were charged as principals with the crime of burglary and were tried together. All of the defendant were convicted and Nichols appealed on the ground that the proof failed to show that he performed the physical act of breaking in and thus was not a principal as charged, but was, at most, only an accessory Before the fact and should have been informed against as such. In upholding the validity of that information we said:

'Counsel rely on the doctrine announced in the case of State v Gifford, 19 Wash. 464, 53 P. 709. In the earlier case of State v. Duncan, 7 Wash. 336, 35 P. 117, 38 Am.St. 888, it was held that, under the statute abrogating the distinction between an accessory Before the fact and a principal, a defendant may be convicted under an information charging him with the commission of a larceny as principal, although the evidence shows that he was not present at the time the taking was done, but advised and counseled it,...