State v. Myers, 34502
| Decision Date | 22 January 1959 |
| Docket Number | No. 34502,34502 |
| Citation | 334 P.2d 536,53 Wn.2d 446 |
| Court | Washington Supreme Court |
| Parties | STATE of Washington, Respondent, v. George Edward MYERS, Appellant. |
Murray B. Guterson, Seattle, for appellant.
Charles O. Carroll, Lawrence K. McDonell and Anthony Savage, Sr., Seattle, for respondent.
This appeal is from a conviction of murder in the second degree. It is but fair to say that appellant was represented at the trial by other court-appointed counsel, and not by present counsel, who appears at our request. We express to him our gratitude for the faithful discharge of that obligation in the highest traditions of a noble profession.
No question arises as to the sufficiency of the evidence to sustain the conviction. Indeed, the appellant himself frankly and voluntarily declared on the witness stand that he struck the fatal blows which renders a detailed recitation of the gruesome facts unnecessary. It is sufficient to say that Sigurd Oliver, the deceased, a newfound friend, and the appellant engaged in a drinking bout and that, when the tavern closed for the night, Oliver procured a quantity of beer and pizza pie and invited the appellant to partake thereof in his car. Appellant testified that, upon entering the car, Oliver drove off and presently made homosexual advances to the appellant who instantly reached under the seat and procured some metal object, not particularly identified in the evidence, with which he struck Oliver a number of blows on the head. Although appellant, when apprehended, made statements to the prosecuting officials of the circumstances of the crime, he did not until ten minutes before the trial began disclose to them, nor even to his own counsel, the reason for his assault on Oliver.
The errors complained are only to the instructions of the court.
The first complaint made is that instructions Nos. 6 and 7 1 were a comment upon the evidence. In support of this assignment the appellant cites a group of Federal cases. 2 Of course, these are not controlling in any event, and we find the arguments advanced in them unconvincing. It is sufficient to say that it is familiar law that there are no common-law offenses against the United States, 3 and that, in each of the crimes involved in the Federal cases cited, proof of a specific intent was necessary. The statute defining murder in the second degree (RCW 9.48.040), so far as material, is:
'The killing of a human being, unless it is excusable or justifiable, is murder in the second degree when--
'(1) Committed with a design to effect the death of the person killed or of another, but without premeditation; or * * *'
Therefore, specific intent is not an essential element of murder in the second degree. Specific intent is a necessary ingredient of larceny, which was the crime charged in State v. Black, 163 Wash. 237, 1 P.2d 206, cited by appellant.
The specific objection to the instruction in question is that it was a comment upon the evidence, but we find this assignment without merit for our decisions are uniform that Art. IV, § 16, of the Washington constitution, which is:
'Judges shall not charge juries with respect to matters of fact, nor comment thereon, but shall declare the law.'
means no more than that the court is prohibited from informing the jury, by either actions or words, of its own opinion upon any evidentiary matter. State v. Rio, 38 Wash.2d 446, 230 P.2d 308; State v. Clayton, 32 Wash.2d 571, 202 P.2d 922; State v. Brown, 19 Wash.2d 195, 142 P.2d 257.
The next assignment of error is the refusal of the court to give the appellant's requested instruction, the gist of which is contained in the following sentence:
'* * * A person may act in the protection of himself upon circumstances as they reasonably and honestly appear to him at the moment and if he does act honestly and reasonably as the danger appears to him at the time under all the circumstances, the law will not hold him responsible, even though he was guilty of misjudgment and exaggeration of the danger as it actually was. * * *'
The substance was given in another instruction. This is sufficient. The court is not required to instruct in the language requested, but may rearrange the form. It is sufficient when the substance is covered by other instructions. State v. Williams, 49 Wash.2d 354, 301 P.2d 769; State v. Fry, 39 Wash.2d 8, 234 P.2d 531; State v. Salle, 34 Wash.2d 183, 208 P.2d 872.
The third assignment of error is that 'The Court erred in giving manifestly inadequate instructions in connection with the included offense of manslaughter.' No instruction, either given or refused, is set out. In fact, none is identified. Rule on Appeal 43, 34A Wash.2d 47, as amended, effective January 2, 1953, provides:
'* * * No error assigned to...
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State v. Beck
...a requested instruction where the principle of law stated therein was adequately covered by the instruction given. State v. Myers, 1959, 53 Wash.2d 446, 334 P.2d 536, and numerous cases therein It is urged that, since the trial court gave instruction No. 3 (the statutory definition of grand......
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State v. Mays
...involving charges of murder in the first or second degree and in other types of crimes is seen in State v. Collins, supra; State v. Myers, 53 Wash.2d 446, 334 P.2d 536; State v. Putzell, 40 Wash.2d 174, 242 P.2d 180; State v. Hartley, 25 Wash.2d 211, 170 P.2d 333; State v. Schafer, 156 Wash......
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Myers v. State of Washington
...advance toward him. Myers was found guilty of murder in the second degree, and his conviction was affirmed on appeal. State v. Myers, 53 Wash.2d 446, 334 P.2d 536 (1959). Two decades after his trial, Myers petitioned the Washington Supreme Court for release from personal restraint, 1 raisin......
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Petition of Lee
...was held and a guilty verdict returned. Sentence was imposed and an appeal was taken. The appeal was unsuccessful. State v. Myers, 53 Wash.2d 446, 334 P.2d 536 (1959). Incarceration in a state institution followed. Years later a personal restraint petition was brought by Myers collaterally ......