State v. Lewis, 31469.

• Decision Date: 07 December 1950
• Docket Number: 31469.
• Court: Washington Supreme Court
• Parties: STATE, v. LEWIS.

225 P.2d 428

37 Wn.2d 540

STATE, v. LEWIS.

No. 31469.

Supreme Court of Washington.

December 7, 1950

Department 1.

Rehearing Denied March 1, 1951.

H. Earl Davis, Spokane, for appellant.

Delbert R Scoles, D. L. Collins, Colville, for respondent.

DONWORTH, Justice.

The defendant Raymond Lewis, was, by information filed in the superior court for Stevens county, charged with the crime of manslaughter as follows: 'That the said defendant, Raymond Lewis, on or about the 30th day of October, 1949, in the County of Stevens, State of Washington 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, did shoot a rifle so that the bullet from said rifle went into the body of Violet Packer, a human being, thereby inflicting a mortal wound in the body of the said Violet Packer, from which mortal wound the said Violet Packer did on or about the said 30th day of October, 1949, die, and that the killing of said Violet Packer as aforesaid was neither excusable nor justifiable, all of which acts on the part of said defendant were contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the State of Washington.'

Upon arraignment the defendant pleaded not guilty.

A trial to a jury resulted in a verdict of guilty. After denying defendant's motions for a new trial and in arrest of judgment, the trial court entered judgment sentencing the defendant to confinement for a maximum term of not more than twenty years in the state penitentiary. The defendant has appealed to this court.

The circumstances surrounding this fatal accident are as follows:

Appellant, a resident of Spokane, had a hunting license and a doe permit entitling him to hunt for deer in Stevens county. He was an experienced hunter having hunted in this state for some twenty-seven years and was familiar with the area involved in this case.

On the date specified in the information appellant was a member of a hunting party which was hunting just north of the Haverland Meadows in Stevens county. He was aware that there was another hunting party (of which the deceased was a member) which was also hunting in the same locality. Appellant began to hunt about six-thirty a. m., which was within the permissible hours for hunting. His party separated after agreeing to meet at an abondoned mill and appellant walked up to a rocky ledge, the elevation of which was about forty feet above the place where he had seen a deer the previous week.

Appellant testified as to what then occurred:

'A. Well, there is a draw that comes down northeast by this point, and then there is a knoll there, and there is another draw comes down in a practically easterly direction. There is more or less just a little knoll with a draw on each side.

'Q. And when you got within whatever number of feet you were from the face of this cliff, what did you hear or see? A. Well, I was about twenty or thirty feet back from the edge of this cliff and I heard the brush break down in there and it sounded just like a deer giving a couple bounds when it would get up, because I heard just a couple of bounces at the break of the brush and I thought, well, there is a deer coming out, so I backed up a little to watch this open place back this side of the trees that they speak about, and I was watching back there and I was watching this open place for a deer to come out, and I didn't see no deer come out so I started to look back down through the bushes, and when I did I seen a deer's head, what I thought, come up, just the outline come up in the edge of this brush, and I pulled up my gun and pulled down on it and was going to shoot, and I shot at a deer's head right on up this ridge the Sunday Before , so I didn't shoot, I pulled my gun down and and was looking to find the outline of the body of the deer.

'Q. You have to compete with this truck. Will you keep your voice up? A. So I pulled my gun down and was watching, and at the same time I heard some more brush break and I looked around there and I looked back, and when I looked back there I seen a flick of white and I heard this noise, and I thought the deer had turned around. When I seen this flick I thought that was the deer's tail and I thought----

'Q. So there was some time elapsed. You didn't come up there and pull your gun up immediately, but you waited until you saw what you determined to be a deer's tail, is that right? A. Yes, sir. * * *

Mr. Davis:

'Q. After you shot, did you see a man somewhere in the near vicinity there? A. Yes.

'Q. And you left, did you? A. Yes.

'Q. Where did you go? A. Well, after I shot I heard a scream about a minute or so after that and I became so frightened and panic stricken that I didn't know what--I thought some accident might have happened but I thought, how could a thing like that happen? and I got panicky and took off up this long ridge that runs back on this side. I started back up there, and I had went about fifty yards and that was open ground and there was a man on this knoll I was speaking about to my left going up,--there was a man there on open ground, and he hesitated to stop and I hesitated to stop and we both went on.

'Q. And you did go back and meet your party at the sawdust pile or the old mill? A. Yes.

'Q. And you didn't say anything until that evening, is that right--or the next evening? A. The next evening.

'Q. And then you did call Mr. Oxreider and Mr. Hall? A. Yes, sir.

'Q. As has been testified here, and did go to the sheriff's office? A. Yes.'

The evidence showed that the bullet from appellant's gun struck Mrs. Packer severing an artery and causing death almost immediately. The distance from the ledge where appellant was standing when he fired his gun to the place where Mrs. Packer fell was 106.3 feet, measured in a direct line. The time of the shooting was fixed by several witnesses at about six-fifty a. m.

After the accident appellant and his party drove to another hunting area about twenty miles distant where they hunted the rest of the day. Although one member of the party knew that Mrs. Packer had been killed and told his companions about it, appellant did not mention his possible connection with her death until the following evening. He then called his companions together and they discussed with him what he should do. As a result of their advice, appellant immediately went to the sheriff's office in Spokane and reported the matter. On the following day he signed a statement in the presence of the prosecuting attorney and sheriff of Stevens county in which he admitted firing the fatal shot.

No contention is made by appellant that the evidence was insufficient to warrant the jury in finding that the act charged in the information was committed by him. No exceptions were taken to any of the instructions given by the court to the jury.

Six errors are assigned but in considering the first three we dispose of all of them, since the legal principles involved are the same. The first three are stated by appellant as follows:

'I The court erred in refusing to permit the witness George Oxreider, Sr., to testify from his experience that the defendant was careful as a hunter and in the use of a gun, and in denying defendant's offer of proof with reference thereto.

'II The court erred in communicating with the jury after the case had been submitted to it for decision and during its deliberations, in the absence of the defendant.

'III The court erred in failing to have the jury returned into open court for further instructions clarifying Instruction No. 9 given by the court, when requested to do so by the jury.'

Referring to the first assignment of error, appellant's witness, George Oxreider, Sr., testified that he was a hunter of long experience, had hunted deer with appellant or with parties of which the appellant was a member since 1941 with the exception of a year or two during the war. The witness was then asked the following question on his direct examination: 'Q. What is the fact, Mr. Oxreider, as to whether or not Mr. Lewis is careful as a hunter and in the use of a gun?'

The trial court sustained the state's objection that this question was immaterial and irrelevant. Appellant then made the following offer of proof which was refused by the trial court: 'The defendant offers to prove by this witness now on the stand that the reputation of the defendant, general reputation, in the exercise of the sport of hunting was that of a careful and prudent individual, and that this witness, if permitted to testify, would testify that he had hunted many, many times with the defendant, and that the defendant was careful in the handling and use of firearms.' Appellant argues that the proffered testimony had a direct bearing on the traits and characteristics of the appellant involved in the charge on which he was being tried and should have been submitted to the jury for its consideration in determining whether or not at the time charged in the information the appellant was careless or negligent or failed to use ordinary caution under the circumstances.

In support of this argument appellant quotes from the Oklahoma case of Henderson v. State, 59 Okl.Crim. 86, 56 P.2d 915, in which the defendant in a homicide case pleaded self defense and the court permitted him to produce evidence as to his being a peaceable, law-abiding citizen. The rationale of that case is not applicable here. Under the...