State v. Hawkins

• Decision Date: 19 November 1900
• Parties: STATE v. HAWKINS.
• Court: Washington Supreme Court

63 P. 258

23 Wash. 289

STATE v. HAWKINS.

Supreme Court of Washington

November 19, 1900

Appeal from superior court, Skagit county; J. P. Houser, Judge.

Alfred Hawkins, informed against as Alfred Hamilton, was convicted of murder, and appeals. Reversed.

J. B. Wright and R. H. Lindsay, for appellant.

M. P Hurd and McBride & Joiner, for the State.

DUNBAR C.J.

The appellant was convicted of the crime of murder and sentenced to death, and judgment of death was pronounced upon him. This is an appeal from said judgment. A minute statement of the case is unnecessary, as the killing is conceded, and that it was ruthless and unprovoked. The principal defense was that the appellant was irresponsible by reason of his having been under the influence of intoxicating drinks and drugs which had been administered to him.

The first assignment of error challenges the correctness of the overruling by the court of appellant's motion for a change of venue. The law on that subject is as follows 'The defendant may show to the court, by affidavit, that he believes he cannot receive a fair trial in the county where the action is pending, owing to the prejudice of the judge, or to excitement or prejudice against the defendant in the county, or some part thereof, and may thereupon demand to be tried in another county. The application shall not be granted on the ground of excitement or prejudice other than prejudice of the judge, unless the affidavit of the defendant be supported by other evidence; nor in any case unless the judge is satisfied the ground upon which the application is made does exist. When the affidavit is founded on prejudice of the judge, the court may, in its discretion, grant a change of venue to some other county or may continue the cause until such time as it can be tried by another judge in the same county; if the affidavit is founded upon excitement or prejudice in the county against the defendant, the court may, in its discretion, grant a change of venue to the most convenient county. * * *' 2 Ballinger's Ann. Codes & St. §§ 6794, 6795. The construction placed upon this statute by the appellant is to the effect that, because it provides that when the application is based on the ground of excitement or prejudice other than prejudice of the judge the application shall not be granted unless the affidavit be supported by other evidence, but that when it is upon the ground of the prejudice of the judge no supporting affidavit is necessary, it follows that it was the intention of the law that no discretion be left with the judge when the application is based upon his prejudice, and that the language of section 6795, viz. 'When the affidavit is founded on prejudice of the judge, the court may, in its discretion, grant a change of venue to some other county, or may continue the cause until such time as it can be tried by another judge in he same county,' confers discretion simply as to the choice of either removing the case to some other county, or holding it for trial by another judge in the same county; and the argument is based upon the presumption that a judge is not capable of passing upon the question of his own prejudice. However this may be, we are called upon to construe the statute as it has been enacted, and, so construed, we are unable to conclude that the discretion is taken from the judge in one case more than in the other. In fact, such a conclusion is necessarily excluded by the very provisions of the statute itself, viz. the concluding clause of section 6794, that the application shall not be granted 'in any case unless the judge is satisfied the ground upon which the application is made does exist.' Neither do we think, from an examination of the record, that the judge abused his discretion in refusing the motion either on the ground of his own prejudice, or that of prejudice of the community.

Error is alleged in the giving of instruction No. 6, which is as follows: 'No particular length of time need elapse before there can be deliberation or premeditation in an act. A single moment may be enough. It is sufficient if you find from the evidence, and beyond a reasonable doubt, that any length of time elapsed, no matter how short, sufficient to allow a design to be formed in the mind, and that design to be deliberated upon and meditated over before carrying into effect.' It is insisted that this instruction is contrary to the ruling of this court in State v. Rutten, 13 Wash. 203, 43 P. 30; Same v. Straub, 16 Wash. 111, 47 P. 227; and Same v. Moody, 18 Wash. 165, 51 P. 356. The language criticised by this court in State v. Rutten, supra, and which was held to obliterate the statutory distinction between murder in the first and second degrees, was as follows: 'There need not be any appreciable space of time between the formation of intention to kill and killing. They may be as instantaneous as successive thoughts.' Practically the same language was used by the court in State v. Moody, supra. The mastruction in the Rutten Case was noticed by this court in State v. Straub, supra, and was distinguished from the instruction alleged as error in the latter case, which was as follows: 'Malice is deliberate and premeditated when it has been dwelt upon at all in the mind, and when the motive or consideration moving to his act has been to any extent mentally weighed. Premeditation may be as quick as thought in the mind of man.' This instruction, without going into an analysis of it as we did in that case, was held to be good. The instruction in this case not only does not fall within the criticism passed upon the instruction in the Rutten Case, but makes a wider distinction between murder in the first and murder in the second degree than does the instruction in the Straub Case, just noticed. The objection to the instruction in the Rutten Case was that it informed the jury that no appreciable space of time was necessary, and hence no opportunity for deliberation, but the instruction under consideration is not subject to this construction.

Objection is also made to the eighth instruction of the court, which was as follows: 'I instruct you that voluntary drunkenness is not an excuse for crime, but as you must determine the degree of the crime of which the defendant is guilty, if he is guilty at all, it becomes necessary for you to inquire as to the state of mind under which he acted and in the prosecution of such inquiry his condition, as drunk or sober, is proper to be considered, inasmuch as the degree of the offense, if any has been committed, depends upon the question whether the killing was willful, deliberate, and premeditated; and upon that question it is proper for you to consider evidence of intoxication, if such there be, not upon the ground that drunkenness...