State v. Duncan

• Decision Date: 27 April 1918
• Docket Number: 14352.
• Citation: 172 P. 915,101 Wash. 542
• Parties: STATE v. DUNCAN.
• Court: Washington Supreme Court

172 P. 915

101 Wash. 542

STATE v. DUNCAN.

No. 14352.

Supreme Court of Washington

April 27, 1918

Department 2. Appeal from Superior Court, Whatcom County; Ed E. Hardin Judge.

Richard Duncan was convicted of murder in the first degree, and he appeals. Affirmed.

Walter A. Martin, of Bellingham, and Walter B Allen and Bell & Hodge, all of Seattle, for appellant.

W. P Brown and Loomis Baldrey, both of Bellingham, for the State.

HOLCOMB J.

The verdict of the jury, convicting appellant of the crime of murder in the first degree, was returned and filed on April 3, 1917. A motion for a new trial upon the statutory grounds in the language of the statute was served and filed April 4 1917. The motion was argued in the court below and by it denied on April 24, 1917, and on the same date the judgment and sentence of the court on the verdict was filed and entered. On April 25, 1917, appellant served and filed his notice of appeal to this court, and, no bond being required in a criminal case, the notice of appeal constituted his appeal to this court. Thereafter on May 9, 1917, appellant served and filed a motion to set aside the order of April 24, 1917, denying his motion for new trial, and at the same time moved for an extension and enlargement of the time for submission of a motion for a new trial and reargument thereof and supported the same by affidavits, which motion was on May 14, 1917, upon notice, brought on for hearing in the court below and after argument was denied by the court upon the ground that it had lost jurisdiction of the matter under the statute by reason of the appellant's having appealed to the Supreme Court.

Appellant first complains of the giving of an instruction by the court quoted in part as follows:

'Premeditated design is a mental operation of thinking upon an act before doing it or upon an inclination before carrying it out.'

This instruction was given in one stating all the elements and legal terms defining murder in the first degree. Almost the exact language of this instruction was approved in State v. Straub, 16 Wash. 111, 47 P. 227.

The same definition of premeditation or premeditated design is given in 31 Cyc. 1162.

Complaint is also made of instruction No. 11 given by the court as follows:

'You are further instructed that malice aforethought or malice with premeditation, or premeditated malice, which is another way of putting it, in a case of this kind, as where the intention to unlawfully take life is deliberately formed in the mind, and that determination meditated upon before the fatal shot is fired. There need be no fixed or definite length of time between the formation of the intention to kill and the killing, but there must be actual time for meditation between the formation of the intention to kill and the homicide. It is sufficient if the act of killing be preceded by a concurrence of will, deliberation, and premeditation on the part of the slayer, though but a moment be taken in the formation of the design to kill and in the deliberation upon and meditation of such design before carrying it into effect.'

It is contended that this instruction is identical with one disapproved by this court in State v. Rutten, 13 Wash. 203, 43 P. 30, and similarly in State v. Moody, 18 Wash. 165, 51 P. 356. The contention is that the instruction did away with the idea of deliberation. The instruction in this case is very similar to the one approved in State v. Straub, supra, distinguishing the instruction in that case and the one in the Rutten Case; and the language in the instruction here:

'It is sufficient if the act of killing be preceded by a concurrence of will, deliberation, and premeditation on the part of the slayer, though but a moment be taken in the formation of the design to kill and in the deliberation upon and meditation of such design before carrying it into effect.'

--met with the approval of the court in the Straub Case, supra. It was not erroneous.

The next complaint is that the court instructed the jury:

'You are further instructed that, if the killing of one human being by another is proven beyond a reasonable doubt, the presumption of law is that it is murder in the second degree. * * * If the defendant seeks to justify the acts in such case the burden is upon the defendant so to do.'

That such instruction states the law as declared in this state is settled by the following cases: State v. Payne, 10 Wash. 545, 39 P. 157; State v. Clark, 58 Wash. 128, 107 P. 1047; State v. Drummond, 70 Wash. 260, 126 P. 541; State v. Hawkins, 89 Wash. 449, 154 P. 827.

The next complaint is of an instruction given by the court which appellant says told the jury that the defense of appellant was an alibi, and, further, in discussing the evidence of an alibi, says that the evidence of an alibi should account for the defendant during the whole period in which the jury should find that the offense charged was committed. It is asserted that the instruction was prejudicial to the appellant because the defense was not necessarily an alibi as a matter of fact, but that the defense was simply one of not guilty. The instruction was that one of the defenses interposed by the appellant was an alibi; then defining an alibi in accordance with approved declarations of this court, and stating how an alibi was to be proven by the accused, not by evidence beyond a reasonable doubt or even by a preponderance of the evidence, but if the evidence upon the proposition raised a reasonable doubt in the minds of the jury as to whether the accused was at another place than that at which the crime was committed at the time of its commission, if committed, it would be sufficient. Appellant is not in a position to complain of the giving of the instruction upon the subject of alibi, because appellant himself submitted an instruction upon that same subject and introduced evidence in his own behalf attempting to establish an alibi. The instruction given was more complete and accurate than the one requested by appellant, and he is not prejudiced thereby.

Appellant requested the court to give seventeen instructions, and argues that two of the requested instructions should have been given, and that the court erred in not giving them. One of these, the sixth, was a request upon circumstantial evidence. The court gave a very elaborate and accurate instruction upon the subject of circumstantial evidence, its weight and value in criminal cases, which has been approved in 2 Blashfield's Instructions to Juries, §§ 2414, 2454. The instruction was, in fact, more instructive to the jury than that offered by appellant.

The next assertion is that requested instruction No. 8 should have been given as follows:

'A part of the evidence of the state consists of certain declarations or statements alleged to have been made by the defendant and testified to by witnesses in this case; the court instructs you that the law is that such evidence should be received with great caution as the liability to mistake on the part of the witnesses may occur in the repetition of language, the understanding of what was said, or the speaker may not have conveyed fully to the witness the idea intended by the language used; therefore for such reasons such testimony is to be received by you with great caution and weighed with great

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