State v. Jensen
| Decision Date | 25 April 1938 |
| Docket Number | 26950. |
| Parties | STATE v. JENSEN. |
| Court | Washington Supreme Court |
Department 1.
Appeal from Superior Court, King County; Howard M. Findley, Judge.
Gordon Jensen was convicted of second degree murder, and he appeals.
Affirmed.
H Sylvester Garvin and Anthony Savage, both of Seattle, for appellant.
B. Gray Warner, Pros. Atty., John M. Schermer, and Harry A. Bowen all of Seattle, for the State.
Appellant was charged with the crime of murder in the first degree. He entered a plea of not guilty. The jury returned a verdict of guilty of the crime of murder in the second degree. Judgment was entered upon the verdict, and the maximum sentence was fixed at not more than 25 years.
The essential facts are these: May 14, 1937, appellant, a police officer in Seattle, arose at some time between 8 and 9 o'clock a. m. On that day appellant was on sick leave and off police duty by reason of the fact that he had fractured his right ankle. Two sisters of appellant's wife came to his home, located at 942 Market street in Ballard in the city of Seattle, at about 8 o'clock on that morning and remained about an hour. When they departed they drove appellant to a beer parlor where he had two glasses of wine after which they took him home. It appears that appellant also had several drinks of whisky Before and after breakfast.
About 1:30 p. m. appellant and his wife, Mamie Jensen, drove to a department store, where they purchased an automobile tire. Thereafter they drove north on First avenue, and stopped at a place where appellant had two drinks of whisky, and appellant's wife also had two drinks brought out to her at the automobile. They then drove to Second avenue and called at a speak-easy upon a person who owed appellant a small sum of money, and while there appellant had two more drinks. Immediately after this they stopped at another department store where appellant's wife made a purchase, after which they drove to a testing station to have their car tested. The examination of their car having been completed, they drove across the Fremont bridge and stopped at a tavern where appellant drank some more wine. Appellant then drove the car to his home, arriving there at about 4:30 p. m.
While driving home, appellant and his wife argued about many things, chiefly money matters and appellant's excessive drinking. As to whether they quarreled at that time about Mrs. Jensen's keeping company with another man and being unfaithful to appellant, the testimony is conflicting. Mrs. Jensen went into their home through the back door. Appellant placed the new tire in his basement, and then went upstairs to the kitchen by the basement stairway.
Appellant carried a gun in his right hip pocket, as is customary with Seattle police officers when they are either on or off duty. A short time after returning to their home the next door neighbors, Mr. and Mrs. Kuphal, heard some shots fired and summoned the police, who arrived shortly after 6 p. m. Upon their arrival they found the dead body of Mamie Jensen lying in the kitchen under the sink, and appellant sitting on a chair beside the range.
At the conclusion of the State's case appellant challenged the sufficiency of the evidence with reference to the charge of murder in the first degree on the ground that no premeditated design was established by the testimony of the witnesses. He further challenged the sufficiency of the evidence with reference to second degree murder and requested the court to instruct the jury merely upon the basis of manslaughter. Appellant also requested the court to take away from the jury the question of manslaughter, and to instruct the jury to return a verdict of not guilty of any other crime that may be included within the crime charged, including any offense in any degree. These motions were denied.
From the judgment entered upon the verdict and the denial of the motions for arrest of judgment, and a new trial, this appeal is taken.
Appellant sets up 13 assignments of error. Assignments Nos. 1, 2, 10, 11, and 12, relate to the sufficiency of the evidence and the refusal of the lower court to take the charges of first and second degree murder from the jury.
Yoris, chief of detectives, who arrived at appellant's home at 7:05 p. m. May 14, 1937, questioned appellant and testified in regard to his conversation with him as follows:
We do not feel that it would serve any good purpose to particularize the testimony, much of which is conflicting. In substance the defense attempted to show that the decedent had made previous threats upon appellant's life; that both appellant and his wife were intoxicated at the time of the shooting; and that at the time the fatal shot was fired decedent had threatened to take appellant's life.
We find there was sufficient evidence in the record to warrant the submission of the case to the jury and that the trial court should not have done otherwise.
In assignments of error Nos. 3, 4, and 6, appellant complains that the trial court erred in permitting Dr. Hoedemaker's rebuttal testimony.
Appellant testified that following the shooting he lost his power of recollection and that he experienced a lapse of mind from which he did not recover until approximately 3 days later.
An examination of the testimony of this physician discloses that it tends to contradict, qualify, and limit material matters presented by the testimony of appellant. The trial court did not abuse its discretion in permitting the admission of this testimony.
In State v. Bailey, 147 Wash. 411, 266 P. 163, 165, we approved the following text:
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Dill v. Zielke
...we refused to relax the rule requiring filing of bill of exceptions or statement of facts within ninety-day period. In State v. Jensen, 194 Wash. 515, 78 P.2d 600, on appeal of defendant from conviction of murder in the second degree we refused, under rule--not jurisdictional--of this court......
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State v. Huelett
...to it. It is not the memorandum which is evidence but the recollection. Schmidt v. Van Woerden, 181 Wash. 39, 42 P.2d 3; State v. Jensen, 194 Wash. 515, 78 P.2d 600. (Italics In McCoy v. Courtney, 30 Wash.2d 125, 190 P.2d 732 (1948), we said in part: The witness testified from personal know......
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State v. Coffey
... ... or memorandum and if he thereby recollects a fact or ... circumstance he may testify to it. It is not the memorandum ... which is evidence but the recollection. Schmidt v. Van ... Woerden, 181 Wash. 39, 42 P.2d 3; State v ... Jensen, 194 Wash. 515, 78 P.2d 600 ... A diary ... or other writing is not made evidence by its use to refresh ... the memory of a witness or by the fact that it would be ... permissible to use it for such purpose ... [112 P.2d 992.] ... If the ... ...
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State v. Severns
...193 Wash. 1, 74 P.2d 469; State v. Severns, 13 Wash.2d 542, 125 P.2d 659; Moffitt v. Goldcamp, 195 Wash. 75, 79 P.2d 695; State v. Jensen, 194 Wash. 515, 78 P.2d 600. second assignment of error is without merit. The evidence is ample to sustain the verdict. Appellant's assignments of error ......