State v. Griffith, 34356

• Decision Date: 07 August 1958
• Docket Number: No. 34356,34356
• Citation: 328 P.2d 897,52 Wn.2d 721
• Court: Washington Supreme Court
• Parties: The STATE of Washington, Respondent, v. Henry M. GRIFFITH, Appellant.

Page 721

52 Wn.2d 721

328 P.2d 897

The STATE of Washington, Respondent, v. Henry M. GRIFFITH, Appellant.

No. 34356.

Supreme Court of Washington, En Banc.

Aug. 7, 1958.

Rehearing Denied Oct. 7, 1958.

James P. Billberg, Othello, Francis P. Cael, Spokane, for appellant.

Edward G. Cross, Ritzville, for respondent.

HUNTER, Justice.

Henry M. Griffith was arrested, charged, and convicted of murder in the first degree for killing A. B Davis near Lind, Washington, on October 4, 1956. The jury returned a special verdict recommending that the death penalty be imposed. On March 8, 1957, the defendant was sentenced to be hanged. This appeal followed.

The evidence reveals that A. B. Davis left his home at Lind, Washington, shortly after noon on October 4, 1956, informing his wife that he was going to make a gas delivery. That was the last time he was seen alive. When he did not return to his home for his evening meal, as was his custom, a search was organized by his son and neighbors. Upon information that the truck which he was driving that day was seen at what is known as the Campbell Place, the search was centered in that area. On the morning of October 5, 1956, the searchers found Mr. Davis' body approximately 162 feet from the roadway. There was a bullet wound in the head, and the body was lying face down with the arms crossed behind the back. The belt from his trousers had been removed and was lying beside the body. His pockets had been rifled, the contents of his billfold were scattered, and the wristwatch which he had been wearing was missing.

During the search for the body, a blue 1949 Pontiac sedan was found standing in the field near the Campbell Place. As a result of a check of the license number of the automobile, the sheriff's officer ascertained that it was registered to Alfred J. Bolser of Spokane, Washington, and uncle of the appellant Henry M. Griffith. It was further ascertained that the appellant had borrowed the car to make a trip to Pasco, Washington. On the basis of this information, a state alarm went out for the apprehension of the appellant.

On the night of October 6, 1956, at approximately 11:30 p. m., pursuant to a radio call, Warren Adams, a detective with the Spokane county sheriff's office, proceeded to north Market street in Spokane, where he found the appellant lying on the shoulder of the street suffering from a bullet wound in the right abdomen which was self-inflicted. Upon ascertaining the identity of the appellant, Detective Adams asked him if he was the one who shot the man near Lind, Washington, and the appellant answered yes. In response to a question of why he shot Mr. Davis, the appellant stated that he was hunting near Lind, that he was on parole from Monroe, and Davis told him he was going to arrest him. Not wanting to go back to Monroe, he had to shoot the man. The appellant again admitted the killing in the ambulance on the way to the hospital. At this time he denied robbing Mr. Davis, but admitted taking his wristwatch. Detective Adams took the wristwatch which the appellant was wearing into his possession and during the trial it was identified as the wristwatch of Mr. Davis.

On October 7, 1956, the gas truck driven by Mr. Davis on the day in question was discovered in Seattle, Washington. The evidence indicates that the appellant lost the keys to the Pontiac near the Campbell Place (which were, in fact, found in that area), and that he took the Davis truck and drove to Seattle.

The state sought to introduce two written confessions obtained from the appellant on the seventh and eleventh of October, 1956, in which he again stated the reasons he deemed it necessary to kill Mr. Davis. The trial court admitted the latter as exhibit No. 19, but rejected the former which was obtained on the same day that the appellant had undergone a serious operation.

The trial court admitted state's exhibit No. 23, a 38-55 rifle, which inflicted the wound received by the appellant and which was discovered by the police officers when they found the wounded appellant. It was established that this rifle was owned by appellant's uncle. Mr. Donald F. McCall, a ballistics expert, and chairman of the Department of Police Science and Administration at Washington State College, testified that the bullet jacket recovered from the wound of A. B. Davis, had been fired by this rifle. He testified further that as a result of the size of the powder burns around the wound the muzzle of the gun at the time it was fired was something less than eighteen inches from the pentrating wound.

Appellant first assigns as error the failure of the trial court to sustain his demurrer to the amended information on the ground that it is indefinite as to the weapon used in the killing. This assignment is without merit.

The rule is well established in this state that it is sufficient, in charging a crime, to follow the language of the statute, where such crime is there defined, and the language used is adequate to apprise the accused with reasonable certainty of the nature of the accusation. State v. Olsen, 1953, 43 Wash.2d 726, 263 P.2d 824; State v. Moser, 1952, 41 Wash.2d 29, 246 P.2d 1101; State v. Forler, 1951, 38 Wash.2d 39, 227 P.2d 727.

RCW 10.37.050 provides:

'The indictment or information is sufficient if it can be understood therefrom--

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'(6) That the act or omission charged as the crime is clearly and distinctly set forth in ordinary and concise language, without repetition, and in such a manner as to enable a person of common understanding to know what is intended; * * *'.

The amended information in this case is substantially in the words of the statute (RCW 9.48.030) and charged, in part, that the appellant did 'shoot and kill A. B. Davis with a rifle.' This is a sufficient description of the weapon used in the killing. See State v. Bridgham, 1908, 51 Wash. 18, 97 P. 1096.

The next assignment of error is that the trial court erred when it admitted, over objection, state's exhibit No. 1 (the belt), which was found beside Mr. Davis' body when it was discovered. The appellant argues that the exhibit was irrelevant and immaterial and that he was prejudiced by its admission into evidence. We do not agree. The belt was among the effects of the decedent found at the scene of the crime and was directly related to the manner in which the crime was committed. As we have previously stated, when Mr. Davis was found, he was lying face down with his arms crossed behind his back, and on the back of both wrists there appeared a mark an inch and one-half to two inches wide. Dr. J. Colin Lindsay, who examined the body on October 5, 1956, testified that in his opinion the marks upon the wrists (which were about the same width as the belt) were caused by the application of pressure from a flat object such as a belt; that the object that made the marks was on the wrists of the decedent before death, at the time of death, and after death. The trial court did not err in admitting the belt.

The appellant contends the trial court erred in admitting into evidence state's exhibits No. 2 through No. 13, which were pictures of the body taken at the scene of the crime and at the morgue, on the ground that the corpus delicti had already been established, and the photographs were introduced for the purpose of inflaming the jury and arousing their passion and prejudice.

In State v. Farley, 1955, 48 Wash.2d 11, 290 P.2d 987, 992, we held:

'Pictures that accurately represent the true state of condition of the thing depicted, are admissible if they have probative value upon some element of the crime charged. The pictures and clothes in question had a probative value upon the questions of the identity of the victim, the means by which she came to her death, and the existence of intent on the part of appellant. Competent evidence is not prejudicial just because it is gruesome. See State v. Drummond, 70 Wash. 260, 126 P. 541; State v. Payne, 25 Wash.2d 407, 171 P.2d 227, 175 P.2d 494; State v. Nyland , 287 P.2d 345.'

The admission or rejection of photographs lies largely in the sound discretion of the trial court, and in the absence of a showing of abuse of discretion, the trial court's ruling will not be disturbed on appela. State v. Nyland, 1955, 47 Wash.2d 240, 287 P.2d 345.

In the case at bar, the pictures had a probative value, not only to establish the identity of the victim, but to show the manner in which he was killed, the existence of the marks on the wrists, the existence of intent on the part of the appellant, and to aid the jury in understanding the physical facts relevant to the crime. Although the pictures are gruesome, the trial court did not abuse its discretion by their admission.

The appellant contends that the trial court erred in overruling his objection to the materiality and admissibility of the testimony of Hazel Bolser, appellant's aunt, regarding a telephone conversation she purportedly had with the appellant during which he admitted that he had committed the crime. The appellant argues that this testimony was objectionable for the reason that it was hearsay, and the witness could not properly identify the person with whom she was speaking. The respondent concedes the rule to be that a telephone conversation is not admissible, unless the witness can identify that party with whom he is talking, but argues, in the instant case, the witness could not did properly identify the appellant. From the record, it appears that Mrs. Bolser did sufficiently identify the person with whom she was talking as the appellant, and the trial court therefore did not err in admitting the testimony.

Next, the appellant assigns as error the failure of the trial court to suppress his oral and written confession. First, in respect to the oral confessions, the appellant, in the absence of the jury, took the stand in support of his motion to suppress. He testified that the last thing he remembered on the...