State v. Harris
| Decision Date | 15 December 1966 |
| Docket Number | No. 38309,38309 |
| Citation | 69 Wn.2d 928,421 P.2d 662 |
| Court | Washington Supreme Court |
| Parties | STATE of Washington, Respondent, v. Nealy HARRIS, Appellant. |
John D. Spellman, Seattle, for appellant.
Charles O. Carroll, Pros. Atty., David W. Soukup, Deputy Pros. Atty., Seattle, for respondent.
This is an appeal from a conviction of murder in the second degree and assault in the second degree before a court sitting without a jury.
The second-degree murder conviction was under RCW 9.48.040(2), constituting our felony murder statute as applied to second-degree murder; it provides:
The killing of a human being, unless it is excusable or justifiable, is murder in the second degree when--
(1) Committed with a design to effect the death of the person killed or of another, but without premeditation; or
(2) When perpetrated by a person engaged in the commission of, or in an attempt to commit, or in withdrawing from the scene of, a felony other than those enumerated in RCW 9.48.030. (robbery, rape, burglary, larceny or arson in the first degree)
The decisive issue on this phase of the case is the applicability of the felony-murder statute to the circumstances of this case.
Briefly, those circumstances are that Howard Williams, Hope Hall, Dorothy Jean Todd Hall (hereinafter referred to as Mrs. Hall), and Constance Smith were attempting to avoid the defendant. He interjected himself into the group, assaulting Constance Smith with his fists and knocking her to the ground. Her purse, containing a .22 caliber revolver, was knocked from her hands. The defendant secured possession of the revolver. One witness testified that defendant said, 'I will kill all of you sons-of-bitches,' and then fired one shot which mortally wounded Mrs. Hall. Another witness testified that defendant said 'shoot' instead of 'kill,' and that the statement was made 'sort of while it went off.'
The trial court found that the defendant did not intend to kill Mrs. Hall, but that he did willfully assault her with a .22 caliber revolver, 'a weapon likely to produce bodily harm' and that he 'willfully and unlawfully shot at, toward, and into the body' of Mrs. Hall thereby 'inflicting grievous bodily harm' upon her, and that she was mortally wounded and died as a result.
concluded that the defendant--having been engaged in the commission of a felony, i.e., a willful assault 'with a weapon or other instrument or thing likely to produce bodily harm' (RCW 9.11.020(4)), 2 was guilty of murder in the second degree (RCW 9.48.040(2)). 3
This would seem to be an inescapable conclusion from the statute. The appellant, however, urges that our felony-murder statute should not apply to homicides when the precedent felony is an assault on the person killed, 4 and that we should adopt the New York 'merger rule,' which is that the precedent felony in a felony murder must constitute a crime not included in and independent of the homicide. (In this case, Mrs. Hall was assaulted on August 7, 1964, but did not die until September 7.)
This contention is supported by many New York cases. See 6 Fordham L.Rev. 43 (1937); 20 Cornell L.Q. 288 (1935).
The felony-murder doctrine comes to us through the common law.
As early as 1536, it was held that if a person was killed accidentally by one of the members of a band engaged in a felonious act, all could be found guilty of murder. 5
It had its origin in an era when nearly all felonies were punishable by death.
It is pointed out that in later years numerous offenses which were once regarded as gross misdemeanors or misdemeanors have been made felonies by statutory enactment. We have also created by statute new offenses designated as felonies, many of which are malum prohibitum rather than malum in se. These changes, it is argued, make the felony-murder rule too harsh.
Our legislature, however, has not been unmindful of these changing circumstances and has made its own distinction in the matter of homicides occurring while committing attempting to commit, or in withdrawing from the scene of certain felonies. If the felony be robbery, rape, burglary, larceny or arson in the first degree, the killing, though without design to effect death, is murder in the first degree (RCW 9.48.030(3)). If the felony be other than the ones just named, the killing is murder in the second degree (RCW 9.48.040(2)).
A homicide not coming within the first and second-degree murder statutes, 6 and being neither excusable nor justifiable, is manslaughter (RCW 9.48.060).
The legislature has also specifically designated certain killings as manslaughter, i.e., killing unborn quick child (RCW 9.48.070, 9.48.080, 9.48.090); killing by a vicious animal (RCW 9.48.100); killing by overloading passenger vessel (RCW 9.48.110); killing by reckless operation of steamboat or engine (RCW 9.48.120); killing by intoxicated physician while treating a patient (RCW 9.48.130); killing as result of unlawful keeping of explosives (RCW 9.48.140). It has also added to our lexicon the crime of negligent homicide by means of a motor vehicle (RCW 46.61.520).
In light of the distinctions made in our own statutes, we see no reason why we should adopt the New York 'merger rule,' i.e., that the precedent felony, if an assault on the person killed, is merged in the resulting homicide. If we assume that such a merger has been desirable in New York, the answer is that Washington never has been confronted with the same reason for adopting the merger rule that has existed in New York.
In considering the situation in that state, we begin with the proposition that at common law a felonious assault resulting in death was murder. Regina v. Welsh, 11 Cox C.C. 336 (1869); State v. Smith, 2 Strob., S.C., 77 (1847); Gore's Case, 9 Coke 81a, p. 147 (1611). The applicable New York statute provides in part that:
The killing of a human being, unless it is excusable or justifiable, is murder in the first degree, when committed:
1. * * *
2. * * * without a design to effect death, by a person engaged in the commission of, or in an attempt to commit a felony, * * *.
(T)he precedent felony must constitute an independent crime not included within the resulting homicide. People v. Wagner, 245 N.Y. 143, 148, 156 N.E. 644, 646 (1927).
Furthermore, without the merger rule, under the New York law it would never be essential to show intent to kill, deliberation or premeditation, because every first-degree homicide could be charged under the felony-murder provision.
In Washington, the felony murder must occur in the commission of, an attempt to commit, or in withdrawing from the scene of a felony, and must Not be separate, distinct, and independent from it. State v. Diebold, 152 Wash. 68, 277 P. 394 (1929). Our legislature further avoided the merger problem by specifically designating the felonies which result in a first or second-degree felony murder charge. Since an assault felony comes within the ambit of second-degree murder, the state must prove intent and premeditation in order to secure a first-degree murder conviction. Thus the rationale behind the New York merger rule is not applicable in Washington.
As pointed out in Thomas L. J. Corcoran's article 'Felony Murder in New York,' 6 Fordham L.Rev. 43 (1937), in a true felony murder the jury there is limited to first-degree murder or acquittal. He says:
Murder in the second degree and some cases of manslaughter in the first and second degrees involve felonious assault on the person killed and yet if these assaults were not held to be merged in the homicide they would all be murder in the first degree. (p. 48)
It is not surprising that he concluded: 'It is manifest that the doctrine of felony murder is in need of some reformation in New York.'
It may be that the doctrine is also in need of some reformation in Washington, 7 but clearly not by the court in this particular situation where we have a defendant with a revolver in his hand, threatening to 'kill all of you sons-of-bitches,' pointing the revolver at Mrs. Hall, pulling the trigger and inflicting a fatal wound.
Our view is that this defendant is very fortunate not to have been charged with first-degree murder committed.
By an act imminently dangerous to others and evincing a depraved mind, regardless of human life, without a premeditated design to effect the death of any individual; * * *. (RCW 9.48.030(2)).
We turn now to the appeal from the conviction of the second-degree assault. It is the defendant's contention that the evidence does not support the conviction.
In his original assault on Constance Smith, he knocked her purse containing the revolver from her hands and secured possession of the revolver, after which he fired one shot wounding Mrs. Hall. He then started to leave, followed by Constance Smith. We quote her testimony:
Q....
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