State v. Mitchell

• Decision Date: 18 December 1947
• Docket Number: 30263.
• Citation: State v. Mitchell, 29 Wn.2d 468, 188 P.2d 88 (Wash. 1947)
• Parties: STATE v. MITCHELL.
• Court: Washington Supreme Court

188 P.2d 88

29 Wn.2d 468

STATE v. MITCHELL.

No. 30263.

Supreme Court of Washington

December 18, 1947

Department 2

James Mitchell was convicted of murder in the first degree, and he appeals.

Judgment reversed with directions to grant a new trial.

Appeal from Superior Court, Pierce County; F. G. Remann, Judge.

Anothony M. Ursich, and Richard R. Hodge, both of Tacoma, for appellant.

Patrick M. Steele, Earl D. Mann and John B. Krilich, all of Tacoma for respondent.

STEINERT, Justice.

Defendant James Mitchell, was charged with the crime of murder in the first degree. The information, filed by the prosecuting attorney for Pierce county, alleged: 'That the said James Mitchell in the County of Pierce, in the State of Washington, on or about the 18th day of December Nineteen Hundred and forty-six did then and there being unlawfully and feloniously with a premeditated design to effect the death of John R. Thompson, a human being, kill and murder the said John R. Thompson by shooting him with a pistol loaded with powder and ball thereby mortally wounding the said John R Thompson all while engaged in the commission or in attempting to commit the crime of robbery upon the person of the said John R. Thompson, such act being eminently dangerous to another, to-wit: eminently dangerous to the said John R Thompson and evincing on the part of the said James Mitchell a depraved mind, regardless of human life, from which mortal wounds the said John R. Thompson did on the 18th day of December, 1946, die, * * *'

Defendant entered a plea of not guilty and, later, an additional plea of insanity or mental irresponsibility existing at the time of the commission of the crime charged and continuing to exist thereafter.

The jury Before which the defendant was tried returned a verdict of guilty of murder in the first degree and, by answer to a special interrogatory, declared that the death penalty should be imposed. After denying defendant's motion for a new trial and motion for an order staying judgment and further proceedings, the court entered judgment sentencing him to be hanged. Defendant appealed.

The evidence in the case, in so far as it is undisputed, may be summarized as follows: Appellant, James Mitchell, a Negro, was at the time of the homicide, December 18, 1946, 20 years of age. He was born and reared in Texas and migrated to the state of Washington in 1944. For the greater part of the year 1946, he was employed as a laborer at the naval supply depot and at a shipyard plant in or near Tacoma. After the middle of November of that year, he was out of employment.

On December 18, 1946, the following events occurred: About noon, appellant went to a cafe and beer tavern located near Fifteenth street and Broadway, in Tacoma, and while there purchased from, or through, the proprietor, a. .38 caliber Smith & Wesson revolver, loaded with six cartridges. Shortly after 1 o'clock p. m., he went to an office building situated near Eleventh and Broadway, mounted the stairs, and entered the office of Dr. John R. Thompson, a physician. Dr. Thompson was not in at the time and appellant, after waiting for a while, left the office. He returned some time between 2:30 and 3:00 o'clock p. m., and at that time the doctor was in. At the latter's invitation, appellant entered the doctor's private office and treatment room, and almost immediately thereafter drew his revolver and shot Dr. Thompson twice, once through the head and once through the abdomen, from which wounds death ensued almost instantly. Before leaving the scene of the crime, appellant took from the doctor's person a watch, a charm, a chain, and a diamond ring. He then made his escape without attracting any one's attention.

About a week later appellant was arrested on his approach to a service station, and in his possession were found the missing ring, charm, and chain, and also the gun from which the lethal bullets had been fired. Some time thereafter, the police authorities located and recovered the watch, which appellant had in the meantime sold to a third party.

Questioned by the authorities, appellant at first denied all connection with the crime and otherwise explained his possession of the missing articles. Upon a second questioning, however, he made a complete confession, admitting that he had shot Dr. Thompson and then taken from his person the jewelry above described.

Further evidence, introduced on behalf of appellant, was to the following effect: He was born out of wedlock, when his mother was but 15 years of age, and was raised by his maternal grandparents. His mother left home when he was about a year old and thereafter saw him very infrequently, until he joined her in Tacoma in 1944. His father was addicted to 'fits;' his maternal uncle was insane; and his paternal grandmother had some sort of mental affliction. Appellant himself sustained a head injury in his early youth and for some years thereafter periodically suffered fainting spells and 'fits.' He received only four and a half years of schooling, quitting school when thirteen years old, while in the fifth grade. In 1942, he was inducted into the United States Navy, but in about two months, after spending a considerable part of that time in a psychiatric ward, he was given a medical discharge. During the summer and fall of 1946, while he was employed in Tacoma, those who associated with him noticed a distinct change in his personality and demeanor. He became sullen, morose, irritable, and very untidy. Sometimes he would not eat regularly and often he was observed staring into space or talking aloud to himself.

When questioned by the police officers shortly after his arrest, appellant told them that he had not known Dr. Thompson nor had been in his office prior to the day of the homicide; that he had not gone into that particular office with any design, but purely by chance; that he had no purpose in mind when he went there, nor any intent either to kill or to rob the doctor, nor any reason for committing either of such crimes. However, there is undisputed evidence in the record that during the month of February, 1946, appellant had visited R. Thompson at his office and at that time procured from him a health certificate for use in obtaining employment at the naval base.

Appellant testified in his own behalf and, in support of his plea of insanity, narrated a grimly tragical story. He stated that from the time he was 13 years old he had heard the voice of God; that God would tell him to do certain things and he would do them; that in his early life God often told him 'to knock kids in the head' and he would obey the command; and that in later years he frequently conversed with God. He further stated that on December 18, 1946, God talked with him and directed him to the building and office occupied by Dr. Thompson; that after waiting in the outer office a while 'the voice' directed him to take a walk, which he did; that after some further time the same voice directed him to return to the office; that upon his return, the doctor invited him into the inner office; that God then and there told him 'to shoot,' and he obeyed the command. Appellant further testified that he did not believe he had done wrong, because God had directed him to do it, and that he would do so again if so directed. In response to questions on direct examination, he testified that under similar circumstances he would shoot his own attorney or any member of the jury.

Three physicians, specializing in psychiatry, testified that, in their opinion, appellant was insane, both at the time of the homicide and at the time of the trial. Two other physicians, one of whom was a psychiatrist, testified that in their opinion appellant was at all times sane and that his defense was fabricated. The court instructed the jury on the law of insanity, and submitted to it special verdicts to be returned in the event the jury found appellant to have been insane at the time of the homicide or at the time of the trial. No exception was taken to any of those instructions. As previously stated, the jury returned a verdict of guilty of murder in the first degree and, by special answer, prescribed the imposition of the death penalty.

Throughout this opinion will appear the terms 'imminently dangerous' and 'eminently dangerous.' We shall use these phrases, respectively, as they are used in the particular statutes or other writings to which we may at the time be referring, although, apparently, both expressions are intended to have the same meaning.

The principal questions raised by the assignments of error are whether appellant was properly charged with the crime of murder in the first degree, as defined by statute, and whether, under the evidence, the jury was properly instructed on the law relating to such crime.

The relevant statute is Rem.Rev.Stat. § 2392, which, so far as is material here, reads as follows:

'The killing of a human being, unless it is excusable or justifiable, is murder in the first degree when committed either----

'1. With a premediated design to effect the death of the person killed, or of another; or,

'2. By an act imminently dangerous to others and evincing a depraved mind, regardless of liuman life, without a premeditated design to effect the death of any individual; or,

'3. Without design to effect death, by a person engaged in the commission of, or in an attempt to commit, or in withdrawing from the scene of, a robbery, rape, burglary, larceny or arson in the first degree; * * *,' (Italics ours.)

It is asserted by the appellant, and by the respondent state as well, that the information charged the appellant with the crime of murder in the first degree, under each of the subdivisions of the statute as above quoted,...