State v. Gottstein
| Decision Date | 16 July 1920 |
| Docket Number | 15830. |
| Citation | 191 P. 766,111 Wash. 600 |
| Court | Washington Supreme Court |
| Parties | STATE v. GOTTSTEIN. |
Department 2.
Appeal from Superior Court, King County; Calvin S. Hall, Judge.
William Gottstein was convicted of murder in the second degree, and he appeals. Affirmed.
Walter B. Allen, of Seattle, for appellant.
Fred C Brown, C. E. Claypool, and John D. Carmody, all of Seattle for the State.
Appellant was, by information filed in the superior court for King county, charged with the crime of murder in the first degree. From a verdict of guilty of murder in the second degree, and a judgment and sentence based thereon, the case is brought here for review on appeal.
The first assignment of error is that the court erred in refusing to submit to the jury by proper instructions the crime of manslaughter. In State v. Palmer, 104 Wash. 396, 176 P. 547, it is said:
- The law as thus stated is not criticized, but it is argued that it must affirmatively appear from the evidence that the crime of manslaughter is excluded before the court will be justified in refusing to submit that crime to the jury. It has been frequently held that, where the evidence excludes the lesser offense, such lesser offense should not be submitted to the jury. State v. Kruger, 60 Wash 542, 111 P. 769, and authorities there cited.
The statute (Rem. Code, § 2167) provides that, upon an indictment or information for an offense consisting of different degrees, the jury may find the accused not guilty of the degree charged, and guilty of any inferior degree, and therefore the correct rule is that the lesser crime must be submitted to the jury along with the greater, unless the evidence positively excludes any inference that the lesser crime was committed, and it is not incumbent upon the defendant, before such an instruction will be given, to show facts from which a jury might draw the conclusion that the lesser crime and not the greater was in fact committed. Still we think the trial court was right in this case in refusing to submit the crime of manslaughter, for, after a careful study of the record, we think the evidence excludes the possibility that the killing occurred without design, except possibly that it was done in an attempt to commit robbery, which is expressly made murder in the first degree by our statute. Considering all of the circumstances shown, the nature of the wound, and the point where the bullet entered at the left and rear part of the head of deceased, we cannot conceive that the shot was fired in self-defense, and, even if so fired, the killing would have been excusable or justifiable, and no crime, either of murder or manslaughter, would have been committed, and no instruction as to manslaughter would have been pertinent.
While the trial court, as we view the evidence, would have been justified in submitting to the jury first degree murder only yet the defendant, having requested instructions on murder in the second degree and manslaughter, cannot now complain because his request was in part granted. If, under the evidence, it was error to submit the question of murder in the second degree, the defendant by his request invited such...
To continue reading
Request your trial
-
State v. Tamalini
...other grounds by State v. Ash, 68 Wash. 194, 122 P. 995 (1912); State v. McPhail, 39 Wash. 199, 81 P. 683 (1905); State v. Gottstein, 111 Wash. 600, 602, 191 P. 766 (1920); State v. Foley, 174 Wash. 575, 579, 25 P.2d 565 (1933); State v. Scheeler, 45 Wash.2d 661, 663, 277 P.2d 341 (1954); S......
-
State v. Martinez
...49. See, e.g., State v. Foley, 174 Wn. 575, 25 P.2d 565 (1933); State v. Donofrio, 141 Wn. 132, 250 P. 951 (1926); State v. Gottstein, 111 Wash. 600, 191 P. 766 (1920). 50. Even if Veteta-Contreras's and Martinez's alternative means argument was correct, their claim fails. If the evidence i......
-
State v. Coryell
...line of cases involving lesser included offenses: Snider , which relied on Gallagher , which in turn relied on Foley , which then relied on Gottstein . See, e.g ., State v. Snider , 70 Wash.2d 326, 422 P.2d 816 (1967) (the defendant was not entitled to the lesser included offense because th......
-
Voigt v. Webb
...of the degree charged and guilty of any inferior degree. The rule in reference to included crimes has been stated in State v. Gottstein, 111 Wash. 600, 191 P. 766, 767: "The correct rule is that the lesser crime must be submitted to the jury along with the greater, unless the evidence posit......