State v. Hedges

• Decision Date: 17 May 1941
• Docket Number: 28269.
• Citation: 8 Wn.2d 652,113 P.2d 530
• Parties: STATE v. HEDGES.
• Court: Washington Supreme Court

113 P.2d 530

8 Wn.2d 652

STATE v. HEDGES.

No. 28269.

Supreme Court of Washington, En Banc.

May 17, 1941

Gilbert Hedges was charged with crime of manslaughter, and the jury returned a verdict of guilty as charged. From an order sustaining defendant's motion for arrest of judgment and directing his discharge from custody, the State of Washington appeals.

Order reversed and cause remanded with instructions.

Appeal from Superior Court, Grays Harbor County; Wm. E. Campbell judge.

Stanley J. Krause and Paul O. Manley, both of Aberdeen, for appellant.

C. D Cunningham, of Centralia, for respondent.

BEALS Justice.

The defendant, Gilbert Hedges, was, by information filed in the superior court for Grays Harbor county, charged with the crime of manslaughter. A demurrer to the information was overruled, whereupon defendant entered a plea of not guilty. The jury brought in a verdict of guilty as charged, whereupon defendant filed a motion in arrest of judgment and an alternative motion for a new trial. After considerable argument, the trial court granted defendant's motion for arrest of judgment, and entered an order to that effect. Through some oversight, the court made no ruling upon defendant's motion for a new trial. From the order sustaining defendant's motion for arrest of judgment and directing his discharge from custody, the state has appealed.

The entry of the order above referred to is assigned as error.

At the close of the evidence, appellant moved for leave to file an amended information, which motion the court granted. Respondent demurred to this amended information, his demurrer having been by the court overruled. Respondent then pleaded not guilty, whereupon the case was submitted to the jury, as above narrated.

The charging portion of the amended information, which differs only slightly from the original information, reads as follows: 'That he, the said defendant, Gilbert Hedges, in the county of Grays Harbor, state of Washington, on or about the 10th day of October, 1939, then and there being, did then and there wilfully, unlawfully and feloniously, while hunting game, and without using ordinary caution in that the defendant knew or should have known that other human beings were in his close vicinity, and without keeping a proper lookout for other human beings, shoot a 45-90 caliber Winchester rifle so that the bullet shot from said rifle went into the body of George Ogren, a human being, thereby inflicting a mortal wound in the body of the said George Ogren, from which mortal wound the said George Ogren then and there died, and that the killing of said George Ogren as aforesaid was neither excusable nor justifiable.'

There is little dispute in the evidence, and no dispute concerning the following facts: During the month of October, 1939 respondent, having procured a hunting license and a 'deer tag,' together with his friends, the brothers George and John Ogrin, went on a hunting trip in Grays Harbor county. Tuesday, October 10th, found the three friends hunting deer in rough country, George Ogrin, who was the oldest and most experienced hunter of the three, advising concerning the details of the hunt. About half an hour Before the firing of the fatal shot, the three men met to plan their campaign, deciding to separate, each to follow a designated course, in order to cover a nearby ridge. It was agreed that George Ogrin should proceed down the crest of the ridge, with his brother John on his right and respondent to his left. The three men had agreed that care should be taken to avoid shooting in the direction of any member of the party. During the course of the hunt down the ridge, and about five o'clock in the afternoon, while it was still daylight, respondent fired a shot, which struck George Ogrin in the head, killing him. The shot was fired at a point less than two hundred feet (probably less than one hundred fifty feet) distant from where Ogrin was standing, the latter wearing his red hat and red hunting shirt. It is not contended that the men were hunting in a forbidden area, or without the hunting season. It clearly appears that the men were warm friends.

As to testimony not admitted by all parties to be true, respondent stated that Before he fired the shot, he saw the antlers and then the neck of a deer. On the other hand, expert woodsmen who examined the location where a deer was supposed to have been testified that they found no deer tracks in that vicinity. There were trees and underbrush preventing clear observation, but evidence was introduced to the effect that a narrow opening therein would have permitted a view of a man standing or moving where Mr. Ogrin's body was found.

Two questions are presented on this appeal: First, whether one charged with manslaughter can be convicted under an information charging that the death of a human being has been caused by the failure on the part of the accused to use ordinary caution in the performance of some lawful act, by lawful means, and without unlawful intent; and second, whether the record contains sufficient evidence to support a finding by the jury that respondent, in his conduct, was guilty, beyond a reasonable doubt, of the failure to use ordinary caution in firing the shot which caused the death of george Ogrin.

Rem.Rev.Stat. § 2390, defines 'homicide' as follows: 'Homicide is the killing of a human being by the act, procurement or omission of another and is either (1) murder, (2) manslaughter, (3) excusable homicide or (4) justifiable homicide.'

Sections 2392, 23938 and 2394 define, respectively, murder in the first and second degrees and a killing in the course of fighting a duel.

Section 2395 defines manslaughter as follows: 'In any case other than those specified in sections 2392, 2393 and 2394, homicide, not being excusable or justifiable, is manslaughter.'

This definition is exclusive, the statute not affirmatively defining the crime of manslaughter, that offense comprising all homicides not falling within the definitions of murder in the first or second degree, and, on the other hand, such homicides as are not excusable or justifiable. In this case, it is conceded that justification is not an issue.

'Excusable homicide' is defined by Rem.Rev.Stat., § 2404, as follows: 'Homicide is excusable when committed by accident or misfortune in doing any lawful act by lawful means, with ordinary caution and without any unlawful intent.'

Under this section, in plain and unambiguous language, it is provided that Before a homicide can be held excusable, four elements must be present: First, the homicide must have been committed by accident or misfortune; second, it must have occurred in the doing of a lawful act, by lawful means; third, ordinary caution must have been observed by the person responsible for the killing; and fourth, this person must have acted without any unlawful intent. If any one of these four elements be eliminated from the factual situation, the homicide is not within the statutory definition.

It appears from the order granting respondent's motion in arrest of judgment that the trial court was of the opinion that the amended information failed to charge a crime, and that the motion for a dismissal, which respondent made at the close of the state's case, and respondent's motion for a directed verdict of acquittal made at the close of all the evidence, should have been sustained, for the reasons that the information charged no crime, and even if it did, the state had failed to introduce any evidence tending to prove the crime charged.

Respondent argues, in effect, that the phrase 'with ordinary caution,' as contained in § 2404, supra, should be considered as though it read with slight caution; that failure to exercise ordinary caution amounts to ordinary negligence, while the failure to exercise slight caution amounts to gross negligence. The difference between ordinary negligence and gross negligence is one of degree only. Under the terms of § 2404, giving the words their ordinary meaning, the exercise of ordinary caution and the presence of other elements of the statute, with the absence of unlawful intent, equal excusable homicide, while the absence of ordinary caution, or, affirmatively speaking, the presence of ordinary negligence, plus death, equal manslaughter. Respondent's argument is based on the theory that nothing less than gross negligence plus death equal manslaughter.

In support of his argument, respondent cites several decisions of this court. In the case of State v. Palmer, 104 Wash. 396, 176 P. 547, 548, the defendant was charged with the crime of murder in the first degree, the jury having returned a verdict of guilty of murder in the second degree. The defendant had introduced evidence tending to prove that the killing was in self-defense. On appeal, the defendant contended that the trial court should have instructed the jury upon the crime of manslaughter, and that the jury should have been permitted to find the defendant guilty of that offense. In the course of the opinion, the crime of manslaughter was referred to as comprising 'those undesigned killings committed in the commission of some unlawful act which are not excusable or justifiable.' In the case cited, it was held that the facts did not warrant an instruction on the crime of manslaughter, and the judgment was affirmed. The reference to the crime of manslaughter above quoted was general in its nature, and was not intended to be exact or complete. The language used must be considered in connection with the question Before the court. It was nowise necessary, in order to determine the question Before the court, that the crime of manslaughter of the character now Before us be defined or in anywise considered. The defendant relied...