State v. Montgomery
| Decision Date | 07 January 1943 |
| Docket Number | 28807. |
| Citation | 132 P.2d 720,16 Wn.2d 130 |
| Court | Washington Supreme Court |
| Parties | STATE v. MONTGOMERY. |
Department 1.
Chester Montgomery, alias Ben Webbs, was convicted of first degree murder and he appeals.
Judgment affirmed.
Appeal from Superior Court, Spokane County; Fred H. Witt, judge.
Wilmot W. Garvin and Roy C. Fox, both of Spokane, for appellant.
C. C Quackenbush and Leslie M. Carroll, both of Spokane, for respondent.
Defendant was, by information, charged with the crime of murder in the first degree. The pertinent portion of the information reads as follows:
Trial to a jury resulted in a verdict finding defendant guilty as charged in the information and that the death penalty shall be inflicted upon him. Defendant has appealed from the judgment and sentence entered against him upon the verdict.
Counsel for appellant assign as error admission of evidence to establish the fact that Jessie Sellers was a human being. It is argued that our statute defines the crime of murder in the first degree (Rem.Rev.Stat. § 2392) as 'the killing of a human being, * * *' therefore the omission from the information of the words 'human being,' was the omission of descriptive words essential to define the crime and which must necessarily be proved to establish the crime; from which it follows that evidence was inadmissible to establish a point not alleged.
The question is foreclosed in this State. We held in State v. Day, 4 Wash. 104, 29 P. 984, 985, that 'It was never necessary to aver in an indictment for homicide that the person killed was a human being.'
The criminal law has outgrown the technicality (objection that it does not appear upon the face of the information that Jessie Sellers was a human being) urged by appellant. The general charge in the information is the crime of murder in the first degree. The information avers, after specifying the time and place of the crime and its commission while engaged in the perpetration of and attempt to perpetrate the crimes of rape and robbery, that appellant did feloniously and premediatedly kill and 'murder' Jessie Sellers in a manner and by means unknown to the prosecuting attorney. The use of the word 'murder' implied that a rational being was the subject of the crime and the use of an ordinary given name and surname raised the presumption that 'human being' was meant. An information, in language not materially dissimilar from the information in the case at bar was held, in State v. Gondeiro, 82 Mont. 530, 268 P. 507, unobjectionable for failure to allege that the person killed was a human being. See, also, People v. Gilbert, 199 N.Y. 10, 92 N.E. 85, 20 Ann.Cas. 769.
Counsel for appellant next contend that, as the information charged that the manner and means by which Jessie Sellers came to her death were unknown to the prosecuting attorney, the court erred in permitting, over appellant's objection, evidence as to the manner and means of death of the victim. It is insisted that by the very first witness who testified on behalf of the state it was disclosed that at least the manner, if not the means, of the victim's death was known to the prosecuting attorney immediately after the body was discovered, which was approximately two years prior to the time that the information was filed; that while it is proper, where it is a fact, for the prosecuting attorney in drawing an information to allege that certain material facts are unknown, the prosecuting attorney may not make such allegations in the information unless the same are true.
The deputy county coroner, a physician, testified that the cause of death was a crushed chest and a fractured skull, which facts were ascertained by the deputy coroner in an autopsy performed on or about the date of the discovery of the body of the victim. Jessie Sellers was killed in the Victoria Hotel by appellant the night of June 9, 1940. Her body was thrown into the pit of an elevator shaft in that building where it lay until discovered June 14, 1940. The deputy county coroner testified that the body was decomposed, swollen, markedly discolored, and all kinds of discolorations over all parts of the body. The fourth, fifth, sixth, seventh, eighth and ninth ribs were broken on one side of her body and the third, fourth, fifth, sixth, seventh, eighth and ninth ribs on the other side of her body were broken. Her skull was fractured on both sides. The mutilations of the head and torso of the victim were such that it would have been impossible for any one to have accurately stated what weapon was used or what manner or means the appellant employed to destroy the life of his victim. The weight of authority is to the effect that if the mode or manner of producing death is uncertain it is sufficient to allege that a murder was committed in some way and by some means, instruments and weapons to the prosecuting attorney unknown. See 30 C.J. 101; 26 Am.Jur. 337-339; State v. Nielson, 38 Mont. 451, 100 P. 229; State v. Farnan, 82 Or. 211, 161 P. 417, Ann.Cas.1918A, 318.
Counsel for appellant next assign as error introduction into evidence, over objection, of a pair of scissors and a blackjack. It is argued that there is an absence of evidence that the death of the victim was caused by stabbing; and that while some of the wounds on the head of the victim appeared to have been inflicted with a blunt instrument of that character, the evidence of the state is conclusive that the blackjack was not in the possession of appellant at the time of the death of Jessie Sellers.
Undoubtedly the blackjack was the property of appellant who habitually carried that weapon in his overcoat pocket. The Japanese manager of the Idaho Hotel, where the appellant lodged, testified that subsequent to the murder he found the blackjack in a quantity of soiled bady clothing in the laundry room of the hotel. Whether the blackjack was in clothing taken from room 19 where appellant did not reside, or whether appellant had that weapon at the time he committed the murder was a question of fact for the jury. There was sufficient evidence, even if the blackjack was not bloodstained when found, to warrant the jury in inferring that it was one of the instruments used by appellant in committing the murder. The objection to the reception of the blackjack in evidence goes to the weight of such evidence rather than to its admissibility. It was for the jury to consider, with other evidence, whether the blackjack was one of the weapons used by appellant in committing the crime.
While the state did not show that the scissors, which were found at the scene of the murder, were used by appellant in committing the crime, the admission of the scissors, which were probably used to cut the clothing from the victim's body, did not constitute reversible error. Such evidence was of little, if any, persuasive force in establishing appellant's guilt and the admission in evidence of the scissors could not have misled the jury.
Counsel for appellant next contend that the state failed to prove the corpus delicti. It is argued that, while the state identified certain clothing as articles of wearing apparel of Jessie Sellers, the corpse was never identified as the body of Jessie Sellers.
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