State v. Dolan

Decision Date07 September 1897
PartiesSTATE v. DOLAN.
CourtWashington Supreme Court

Appeal from superior court, King county; T. J. Humel, Judge.

Robert Dolan was convicted of assault with intent to commit murder and appeals. Reversed.

Dunbar J., dissenting.

R. R. George and George E. De Steiguer, for appellant.

James F. McElroy and John B. Hart, for the State.


Appellant was tried and convicted upon an information charging him with assaulting and shooting one James M. Snyder with intent to commit murder. The information was based upon section 22 of the Penal Code, which provides that an assault with intent to commit murder, rape, the infamous crime against nature mayhem, robbery, or grand larceny shall subject the offender to imprisonment in the penitentiary for a term of not less than one year nor more than fourteen years. It appears from the bill of exceptions that at the time of, and for some days preceding, the alleged commission of the offense charged in the information, the appellant, Dolan, was employed as a waiter in the restaurant owned and conducted by the said Snyder in the city of Seattle; that upon the afternoon and evening of the day on which said offense was alleged to have been committed the said Dolan had been drinking intoxicating liquors frequently and heavily; that during the course of the evening he left said restaurant after having left therein certain orders to be filled at a neighboring lodging house; that, having remained away a considerable length of time, the said Snyder, about 10 o'clock, left said restaurant for the purpose of finding appellant, and did find him, in company with other persons, including one D. F. Phelps, in a room in a lodging house near to said restaurant, appellant then being much intoxicated; that said Snyder immediately took charge of said appellant, and proceeded to conduct him back to the restaurant heretofore mentioned; that upon entering said restaurant the said Dolan, without any talk or conversation with said Snyder immediately preceding, said to said Snyder, "If you give me any trouble, I will shoot you," and thereupon drew a revolver from his pocket, and shot said Snyder in the mouth; that there had been no previous quarrel, trouble, or altercation of any kind between said Snyder and said Dolan, and previous to said statement made by said Dolan referred to, and there was no proof of any threats made by said Dolan towards said Snyder, nor of any ill will between said Snyder and said Dolan. Said Phelps, having been called as a witness on the part of the state, testified upon cross-examination that at the time and immediately before the defendant was conducted from the room in said lodging house, as above stated, by said Snyder, the defendant "was crazy drunk," and that "there was a wild and crazy look in his eyes." Thereupon defendant, by his counsel, propounded to Phelps the following question: "State whether or not the defendant, Dolan, then appeared to be so intoxicated that he did not know what he was doing." To which question the state then and there objected on the ground that the same was irrelevant, immaterial, and incompetent, which objection was then and there sustained by the court, to which ruling of the court defendant, by his counsel, then and there excepted, and said exception was allowed by the court. It also appears from the testimony of said Phelps that within about half an hour before said defendant was conducted from said room by said Snyder as aforesaid the defendant drank the better part of two pint bottles of whisky; and one Doyle, a witness for the defendant, testified that upon the evening of the commission of the alleged offense he was tending bar in the saloon underneath the lodging house above referred to; that immediately prior to going to said lodging house the defendant came into said saloon, and ordered some bottles of liquor and glasses, and attempted to carry them from said saloon; that the defendant was then very much intoxicated, and was intoxicated to such an extent that he was unable to walk erect, and fell prostrate upon the floor with his waiter, bottles, and glasses. Defendant was also sworn in his own behalf, and stated that he had no recollection of stating to the said Snyder that he would shoot him if he gave him any trouble, or making any such statement in substance; and further stated that he did not have at any time any ill will towards said James M. Snyder, and never at any time attempted to kill him. After the conclusion of the evidence, and after the argument of counsel, the court charged the jury as follows (we number the respective paragraphs for more convenient reference):

"(1) Gentlemen of the Jury: The information in this case charges the defendant with the crime of assault with intent to commit murder. The court instructs you that, in order to justify a verdict of guilty of the crime here charged, the facts and circumstances proved in the case must be such that, had death resulted from the shooting, the jury would have found the defendant guilty of murder. Under the law of this state every person who purposely and maliciously kills another is guilty of murder. The questions you have to answer in this case from the evidence are: First. Did the defendant purposely and maliciously shoot the prosecuting witness, James M. Snyder, with a revolver pistol? Second. If he did, did he so shoot with intent to kill and murder the prosecuting witness? Third. Did the transaction take place in this county and state, within the three years last past? If all these questions are answered in the affirmative by you, and you are satisfied of the truth beyond a reasonable doubt, you will find the defendant guilty. If you answer any or all of these questions in the negative, you will acquit the defendant. 'Purposely' means 'on purpose; intentionally.' Malice, the court instructs you, includes not only anger, hatred, revenge, but any other unlawful and unjustifiable motive. It is the intent to denote an action flowing from any wicked, corrupt motive. A thing done with a wicked mind, and attended with such circumstances as plainly indicate a heart regardless of social duty, and fully bent on mischief, indicates malice within the meaning of the law. Hence malice is implied from any deliberate and cool act against another, however sudden, which shows an abandoned and malignant heart.
"(2) You are instructed that if, without such provocation as is apparently sufficient to excite reasonable apprehension, a person shoots another in such a way as is likely to occasion death, although he had no previous malice against the person, yet he is presumed to have had such malice at the moment of shooting; and, if death results from such shooting, it will be murder.
"(3) You are instructed that the natural and probable consequences of every act deliberately done by a person of sound mind are presumed to have been intended by the author of such act; and if the jury find from the evidence in this case, beyond a reasonable doubt, that the defendant did shoot the prosecuting witness as charged in the information, and that the natural and ordinary consequences of such shooting would be the death of the said James M. Snyder, then the presumption of law is that the defendant did shoot the said Snyder with intent to kill him, and that the shooting was done with malice as explained in these instructions, you should find the defendant guilty of an assault with intent to commit murder. The intent with which the defendant shot, if you find he did shoot, is a necessary element in the case; but direct and positive testimony is not necessary to prove the intent. It may be inferred from the evidence, if there are any facts proved which satisfy the said jury beyond a reasonable doubt of its existence.
"(4) The court instructs you that if you believe from the evidence that at the time of the alleged assault the defendant was so intoxicated or besotted with drink that he was incapable of understanding what was right and what was wrong, incapable of forming any intent to kill, then you will find the defendant not guilty of the crime of assault with intent to commit murder. On the other hand, if you believe that the defendant shot as charged, that at the time he fired the shot he comprehended what he was doing, understood the nature of his act, well knew it was wrong, and prohibited by law, you will not acquit on the ground of drunkenness.
"(5) Again, gentlemen, the law is that if a person is assaulted in such a way and under such circumstances as to cause the person assaulted to honestly believe that he is in danger of receiving great bodily harm, the person is justified in defending himself, even to the extent of using a deadly weapon. So, in this case, if you believe that the defendant was assaulted by the prosecuting witness, James M. Snyder, in such a way and under such circumstances as to cause the defendant to honestly believe that he was in danger of receiving great bodily harm, his life was in danger, the defendant was justified in defending himself under such circumstances; but the circumstances must have been such as to cause him to believe honestly that he was in danger of receiving great bodily harm at the hands of the defendant, and that he shot in the honest belief that it was necessary to defend himself.
"(6) The burden of proof is upon the state. Each and every element of the crime charged must be proved to your satisfaction beyond a reasonable doubt, before you can find the defendant guilty.
"(7) You, gentlemen, are the sole judges of the facts in the case. You are also the sole and exclusive judges of the degree of credit you will give to the testimony of the witnesses who have testified before you."


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