State v. Nikolich
| Decision Date | 16 December 1925 |
| Docket Number | 19425. |
| Citation | 241 P. 664,137 Wash. 62 |
| Court | Washington Supreme Court |
| Parties | STATE v. NIKOLICH et al. |
Department 2.
Appeal from Superior Court, Pierce County; Chapman, Judge.
George Nikolich and John Burnett and others were charged with arson in the second degree, the defendants named were convicted and defendant Burnett appeals. Reversed and remanded, with directions.
Harry E. Phelps and Harry H. Johnston, both of Tacoma, for appellant.
J. W Selden and Robt. B. Abel, both of Tacoma, for the State.
By information the defendants were charged with the crime of arson in the second degree. Upon the trial Howard Carter and Mae Carter, his wife, were acquitted. George Nikolich and John Burnett were found guilty, and they appeal from the judgment and sentence entered upon the verdict. The charging part of the information is as follows:
'That the said George Nikolich, Howard Carter, Mae Carter, John Burnett, and John Doe, in the county of Pierce in the state of Washington on or about the 13th day of July, 1924, then and there being unlawfully and feloniously under circumstances not amounting to arson in the first degree, the defendant John Doe, whose true name is unknown to the prosecuting attorney, did willfully set on fire a building, to wit, a house located at 5606 North Forty-Ninth street, Tacoma, Pierce county, Wash and the property of George Nikolich, a defendant herein, and that as a result thereof said house did burn and was destroyed by said fire; and that the defendants George Nikolich, Howard Carter, Mae Carter, and John Burnett did unlawfully and feloniously aid and abet and conspire together and with said John Doe in the setting on fire and burning of said building and the defendants George Nikolich, Howard Carter, Mae Carter, and John Burnett did counsel, encourage, and induce and procure the defendant John Doe to so set on fire and burn and destroy the aforesaid building, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the state of Washington.'
The case was first called for trial on October 14, 1924. At that time, after some preliminary matters which are not here material were disposed of, the attorney for the prosecution stated:
'I want to announce for the record, to show that all the defendants, including Mrs. Carter and Mr. Carter, are present, or are represented by their counsel, and that the state now alleges that the John Doe referred to in the information, whose true name is to the prosecuting attorney unknown, is Howard Carter.'
The case was then continued for two days, and was again called for trial on October 16, 1924. At this time a colloquy took place with reference to how the information should be amended to show that the John Doe stated therein was Howard Carter, one of the defendants. An order had been prepared by the deputy prosecuting attorney and signed by the court, which, though not in the record, apparently eliminated from the information certain matters that would be surplusage after the change in name suggested. The court was willing that the state might file an amended information, but it concluded not to do so. The order which was prepared and signed by the court was withdrawn and destroyed. After this was done, in response to an inquiry by counsel for one of the defendants as to whether the withdrawal of the order withdrew the amendment as to names, the deputy prosecutor stated, 'It withdraws the order.' The attorney for the defendant then said, 'It does not withdraw the statement you made the other morning,' referring to the statement made on the 14th. To this inquiry the record shows that no reply was made. The case then proceeded to trial.
The building for which the appellants were charged with aiding and abetting in destroying was a small dwelling house in the town of Ruston. The authorities of that town had in some way received an intimation that the house was to be burned, and had detailed two officers to watch it on the night of the fire. These two officers secreted themselves a short distance from the house, and at about 12 o'clock midnight a man entered the house which was vacant and unoccupied, and the fire immediately occurred. One of the officers testified clearly and unequivocally that the man entering the house was Howard Carter. The other when asked who it was, stated that he did not know. There was no evidence that any other person set the fire. The appellants by the information were charged as aiders and abettors to John Doe, as were also Carter and his wife. In submitting the matter to the jury, this instruction was given:
'A question of fact, therefore, for your determination in this case is, 'Did the defendants or any of them, in this county and state, on or about the 13th day of July, 1924, unlawfully and feloniously aid and abet, directly or indirectly counsel, encourage him, command, induce, or otherwise procure John Doe to set on fire and burn a house located at 5606 North Forty-Ninth street, Tacoma, Wash., under circumstances not amounting to arson in the first degree?''
By that instruction the question was submitted to the jury as to whether the appellants had aided and abetted John Doe in setting fire to the house. The jury had no knowledge of the preliminaries with reference to the amending of the information above referred to, as they were not present when those matters were disposed of.
The case presents this situation. The appellants were charged as aiders and abettors to John Doe, and in the instructions the case was submitted to the jury upon that theory. There is no evidence, as stated, that any other person than Howard Carter set the fire. The first inquiry is whether an accessory before the fact or an aider and abettor may be convicted, notwithstanding the fact that the principal actor was acquitted. Section 2007, Rem. Comp. Stat., provides:
'No distinction shall exist between an accessory before the fact and a principal, or between principals in the first and second degree, and all persons concerned in the commission of an offense, whether they directly counsel the act constituting the offense, or counsel, aid and abet in its commission, though not present, shall hereafter be indicted, tried and punished as principals.'
Under this statute, as construed by this court in State v Gifford, 19 Wash. 464, 53 P. 709, an accessory before the fact may be convicted...
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...329 (1994); State v. Cleman, 18 Wn.App. 495, 568 P.2d 832 (1977); State v. Taplin, 9 Wn.App. 545, 513 P.2d 549 (1973); State v. Nikolich, 137 Wash. 62, 241 P. 664 (1925). As noted, each involves two clearly identified participates and therefore are inapposite to this case. [11] At the motio......
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