State v. Evans

• Citation: 258 P. 845,145 Wash. 4
• Decision Date: 23 August 1927
• Docket Number: 20693.
• Parties: STATE v. EVANS.
• Court: United States State Supreme Court of Washington

258 P. 845

145 Wash. 4

STATE v. EVANS.

No. 20693.

Supreme Court of Washington

August 23, 1927

Department 1.

Appeal from Superior Court, Pierce County; Chapman, Judge.

Tom Evans was convicted of murder in the first degree, and he appeals. Affirmed.

Lloyd &amp Croleau, of Tacoma, and C. D. Cunningham, of Centralia, for appellant.

J. A Sorley, T. F. Ray, J. W. Selden, and Carroll A. Gordon, all of Tacoma, for the State.

FULLERTON J.

The appellant, Evans, was tried in the superior court of Pierce county for the crime of murder in the first degree, was found guilty by the jury as charged, and was sentenced to the state penitentiary for the term of his natural life.

The appellant was found guilty of the murder of one Victor Nelson. Nelson was, on November 5, 1925, the date of his death, ostensibly conducting a rooming house in the city of Tacoma. His principal business was the illicit sale of intoxicating liquor, and his place was a general resort for persons who made use of such liquors. The rooms occupied by Nelson were on the second floor of a building which faced upon a public street of the city named and extended back to the south from the street some 100 feet towards an alley. A hallway 3 feet wide extended through the center of the building for its full length, on each side of which were a series of rooms, 10 in number. The room in the front of the building in the northeast corner was fitted up as a living room. Next to it on the south was a room called the 'drinking room.' In the extreme southeast corner was a room fitted up apparently as a kitchen, and immediately north of that, on the same side of the building, was Nelson's private room. The private room contained a bed, some shelving, and possibly a chair or two. It had two doors, one leading to the hallway, and the other into the kitchen. The remaining rooms were fitted up as sleeping rooms. There was a stairway on the west side of the building ascending from the street to a hallway which extended east to the main hallway. On the back of the building was a porch, and a stairway led from this porch down to the alley.

The appellant came to the city of Tacoma some ten days before the death of Nelson. He engaged a sleeping room at the Vendome Hotel. He found work with a cornice and roofing company, for whom he worked for three or four days. The work was intermittent because of the inclement weather. He first went to Nelson's place on the afternoon of November 4, 1925. He went there in the company of another person, who introduced him to Nelson. He returned alone on the next day in the early afternoon, staying until the early evening. On this visit he was served with liquor by Nelson, taking some three or four drinks. On leaving the place he went to his room at the hotel, took an extra suit of clothes that he had therein to a pawnshop, pawned it for $8, and returned to Nelson's place, reaching it between 7 and 8 o'clock. At the time of his arrival no one was visibly at the place other than Nelson and a regular lodger by the name of Sheehan. Later on a man by the name of Johnson came in, and later on two other persons. The latter were friends of Johnson, and the four of them, that is Johnson, his two friends, and the appellant, sat in the drinking room and were from time to time served with drinks by Nelson. Johnson seems to have been a stranger in the city and had a sleeping room at the place. The other two were residents of the city. As midnight approached, Johnson went to bed. The other two, concluding that they were too drunk to escape the police if they left the place, asked Nelson for a room and were shown one in which there was a bed. They both lay down on the bed without removing their clothes. Sheehan had been in the drinking room during the early part of the evening, but was not drinking and retired to his room at about 10:30 o'clock. About midnight, or shortly thereafter, Sheehan, whose rooms were across the hallway from the room we have described as Nelson's private room, was aroused by pistol shots. He did not then recognize them as such, but they were to him noises sufficiently strange as to cause him to get up and open the door of his room leading into the hallway. He saw the appellant standing in the hallway in front of the door leading into Nelson's room, and inquired of him where Nelson was. The appellant answered that Nelson was dead, and told him to go into Nelson's room and turn on the light. There was no light in Nelson's room, a fact which Sheehan knew. He then procured a match from his own room and went into the room of Nelson, where he found Nelson lying on the floor. He stooped over to examine him, when the appellant fired two shots from a pistol into his face. The appellant then fled, leaving the building by the back stairway. Sheehan followed and raised an alarm. The city police soon appeared, and Sheehan was able to give them a description of the appellant. The appellant was shortly thereafter arrested, and there was taken from his person at the time of his arrest an automatic pistol, which subsequent investigation showed was the pistol from which the shots were fired that killed Nelson and the pistol from which the shots were fired that struck Sheehan. There were taken from his person, also, a gold watch and a part of a watch chain, with a bunch of miscellaneous papers, that belonged to Nelson. There was a woman, a consort of Nelson, somewhere in the rooms at the time of the shooting, who heard the shots. She testified that an interval of a few seconds followed the first shot, and that the other two were fired in rapid succession. She, also, aided in giving an alarm by screaming and calling for help.

Three shots were fired into Nelson's head. The first was evidently fired while he was on his feet, and the other two after he had fallen to the floor. One of the shots, evidently the first one, was fired from a pistol placed close to the back of the head, the ball entering the back of the head at the base of the skull and ranging upwards through the brain. It, so the medical expert testified, was instantly fatal. The other two were more in the nature of flesh wounds, and would not of themselves have caused instant death.

Nelson kept no liquor in either the living or the drinking room. When drinks were ordered by his customers, he would go down the hallway to the back of the building to procure them, and would bring them to the customers in jelly glasses. There is, of course, no direct evidence, from the viewpoint of the state, of the happenings between the time Johnson and his companions went to bed and the time the appellant was discovered by Sheehan. The inference is strong, however, that the appellant ordered a drink after the persons mentioned went to bed, followed Nelson down the hallway when he went to procure it, and shot him as he entered his private room.

The foregoing is taken from the evidence which the jury were warranted in believing. The appellant gave a different version of the transaction. He testified that, while he took a number of drinks during the course of the night, he was not drinking with Johnson and his companions; that he was in the living room for the greater part of the time playing a phonograph, and was so playing it when Nelson was killed; that he did not hear the shots fired that killed Nelson, but that his attention was attracted by the noise made following his death; that he stepped into the hallway to learn the cause of the noise, and saw three or four persons standing near the door to Nelson's room; that he went to the place where the persons were standing, was handed a bundle by one of them, and told to 'beat it'; that he left the place by the back stairway, and was endeavoring to find his own room when he was arrested by the police; and that the bundle which was handed to him contained the automatic pistol and the property of Nelson which was taken from his person.

Neither Johnson nor his companions was aroused by the shots or the tumult which followed. They were found sleeping in their respective rooms by the police when the building was entered by them some time later.

After the appellant's arrest he was taken to the police station, where he was questioned concerning his knowledge of the transaction. During the course of the examination he made known the place of his room at the Vendome Hotel. Officers immediately went and searched the place, finding therein a pistol holster, which fitted the automatic pistol taken from his person and bore marks which indicated that the pistol had at some time been carried therein.

The statutes of the state defining the different degrees of murder provide (Rem. Comp. Stat. § 2392) that the killing of a human being, unless it is excusable or justifiable, is murder in the first degree when committed either with a premeditated design to effect the death of the person killed or 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. On the trial of the cause the state offered in evidence the articles belonging to Nelson, taken from the person of the appellant at the time of his arrest, and further evidence which tended to show that the appearances of the clothing on the body of Nelson indicated that a robbery had been committed; that is to say, to show that the clothing on the body was mussed, and that the part of his watchchain not found on the appellant at the time of his arrest was fastened to a buttonhole of the vest that was on Nelson's body. The evidence was admitted over the objection of the appellant. It is argued in this court that the admission of this evidence was error because it tended to show a killing in the perpetration of the crime of robbery,...