State v. Mosley
| Decision Date | 05 December 1974 |
| Docket Number | No. 43206,43206 |
| Citation | 528 P.2d 986,84 Wn.2d 608 |
| Parties | The STATE of Washington, Respondent, v. James Theodore MOSLEY, Petitioner. |
| Court | Washington Supreme Court |
James L. Vonasch, Seattle, for petitioner.
Christopher T. Bayley, Pros. Atty., Bruce M. Ries, Deputy Pros. Atty., Seattle, for respondent.
By jury verdict the petitioner was found guilty of the crimes of second-degree assault and second-degree murder. The evidence showed that the victim, an elderly man, who was walking on Pike Street near Fourth Avenue in the city of Seattle, was struck in the face by another pedestrian. He fell and suffered a skull fracture. He died 2 weeks later as a result of this fracture. At the trial the petitioner was identified as the assailant by a young woman who had observed the occurrence from a bus stop island opposite the scene of the encounter.
The conviction was appealed to the Court of Appeals, which affirmed. We granted a petition for review to reconsider the rule laid down by this court in State v. Harris, 69 Wash.2d 928, 421 P.2d 662 (1966), RCW 9.48.040(2). That paragraph of the statute makes the killing of a human being, unless it is excusable or justifiable, murder in the second degree when perpetrated by a person engaged in the commission of a felony other than those enumerated in RCW 9.48.030, which defines murder in the first degree. A majority of this court in State v. Harris, Supra, held that a second-degree murder charge can be sustained without a proof of intent to kill upon proof that the killing of the victim resulted from an assault on him by the accused. That holding appears to be contrary to the general rule. See Annot., 40 A.L.R.3d 1341 (1971).
Before the day set for hearing of oral argument, the court was notified that the petitioner had escaped from custody of the Department of Social and Health Services. We thereupon entertained a motion to dismiss the appeal. Briefs supporting and opposing such dismissal were invited and have been received by the court.
In criminal cases the rule is well settled that where the defendant flees from the jurisdiction pending the appeal, he thereby waives his right to prosecute the appeal, unless within a time fixed he returns and surrenders himself into the custody of the proper officer or gives bail for his appearance. Allen v. Georgia, 166 U.S 138, 17 S.Ct. 525, 41 L.Ed. 949 (1897); State v. Handy, 27 Wash. 469, 67 P. 1094 (1902). Accord: Pike v. Pike, 24 Wash.2d 735, 167 P.2d 401 (1946); State ex rel. Soudas v. Brinker, 128 Wash. 319, 222 P. 615 (1924); Jones v. Jones, 75 Wash. 50, 134 P. 528 (1913).
In State ex rel. Soudas v. Brinker, Supra, the defendant has escaped before the statement of facts was filed and was not apprehended until 6 years later. This court held that the time for filing of the statement of facts had expired and that the appeal would be dismissed immediately. This court stated that whether the court will dismiss the appeal at once or at some future date is a matter of discretion. In State v. Schrader, 135 Wash. 650, 238 P. 617 (1925), this court refused to dismiss an appeal where the defendant who had either escaped or been discharged from a state mental hospital, had been returned to the jurisdiction of the court before sentence was pronounced and the initiatory steps of appeal were taken.
See also Eisler v. United States, 338 U.S. 189, 69 S.Ct. 1453, 93 L.Ed.2d 1897 (1949) and National Union v. Arnold, 348 U.S. 37, 75 S.Ct. 92, 99 L.Ed. 46 (1954).
In Allen v. Georgia, Supra, the defendant asked the Supreme Court of the United States to reverse a state court order refusing to reinstate his appeal after he had been returned to the jurisdiction. The Supreme Court said, 166 U.S. at page 141, 17 S.Ct. at page 526:
We cannot say that the dismissal of a writ of error is not justified by the abandonment of his case by the plaintiff in the writ. By escaping from legal custody, he has, by the laws of most, if not all, of the states, committed a distinct criminal offense; and it seems but a light punishment for such offense to hold that he has thereby abandoned his right to prosecute a writ of error, sued out to review his conviction; otherwise he is put in a position of saying to the court: 'Sustain my writ, and I will surrender myself, and take my chances upon a second trial; deny me a new trial, and I will leave the state, or forever remain in hiding.' We consider this as practically a declaration of the terms upon which he is willing to surrender, and a contempt of its authority, to which no court is bound to submit. It is much more becoming to its dignity that the court should prescribe the conditions upon which an escaped convict should be permitted to appear and prosecute his writ than that the latter should dictate the terms...
To continue reading
Request your trial
-
State v. Wences
...State v. Handy, 27 Wash. 469, 470-71, 67 P. 1094 (1902) (appeal dismissed because defendant fled the jurisdiction); State v. Mosley, 84 Wash.2d 608, 610, 528 P.2d 986 (1974) (appeal dismissed because defendant absconded prior to appellate oral argument); State v. Johnson, 105 Wash.2d 92, 97......
-
State v. Newbern
...at 820, 863 P.2d 85; RAP 2.5(a)(3). Further, the weight of the trajectory evidence was a question for the jury. State v. Mosley, 84 Wash.2d 608, 611, 528 P.2d 986 (1974). Consequently, the trial court did not err in admitting the ETS C. Expert Witness Newbern also attacks Gagner's testimony......
-
State v. Bolding
...custody); State v. Troupe, 891 S.W.2d 808, 811–12 (Mo.1995) (defendant who escaped barred from pursuing appeal); State v. Mosley, 84 Wash.2d 608, 528 P.2d 986, 986–87 (1974) (defendant abandoned right to appeal by escaping following conviction). ¶ 17 Unlike in Arizona, however, the right to......
-
State v. Bolding
...of custody); State v. Troupe, 891 S.W.2d 808, 811-12 (Mo. 1995) (defendant who escaped barred from pursuing appeal); State v. Mosley, 528 P.2d 986, 986-87 (Wash. 1974) (defendant abandoned right to appeal by escaping following conviction).¶17 Unlike in Arizona, however, the right to appeal ......
-
A Constitutional Right to an Appeal: Guarding Against Unacceptable Risks of Erroneous Conviction
...57 Wash. 2d 535, 536, 358 P.2d 316, 317 (1961); State v. Rose, 42 Wash. 2d 509, 514, 256 P.2d 493, 497 (1953). 101. 84 Wash. 2d 608, 528 P.2d 986 102. Id. at 609, 528 P.2d at 986-87. Accord State ex rel. Soudas v. Brinker, 128 Wash. 319, 323, 222 P. 615, 616 (1924); State v. Handy, 27 Wash.......
-
Washington's Second Degree Felony-murder Rule and the Merger Doctrine: Time for Reconsideration
...murder a homicide which should properly be viewed as manslaughter. Note, Felony-Murder Rule, supra note 24, at 274. 46. 84 Wash. 2d 608, 528 P.2d 986 (1974). The defendant struck the victim in the face with his fist, causing the victim to fall backwards and hit his head against a wall. As a......