State v. Nyland
| Decision Date | 01 September 1955 |
| Docket Number | No. 32967,32967 |
| Court | Washington Supreme Court |
| Parties | STATE of Washington, Respondent, v. Jerome A. NYLAND, Appellant. |
Orville E. Peebles, Aberdeen, James J. Lawwill, Elma, for appellant.
Robert L. Charette, James L. Solan, Montesano, for respondent.
The appellant was charged in count I with the murder of Violet Louise Nyland, his wife, and in count II with the murder of Albert Hakkarainen. He was convicted of murder in the first degree under count I and murder in the second degree under count II, and was sentenced to life imprisonment for the first offense and to a maximum of twenty years in the penitentiary for the second, the sentences to run concurrently. From this judgment, he appeals.
Error is assigned to the court's refusal to give requested instructions which embodied appellant's theory of justification, and to the giving of an instruction wherein the jury was told that, as a matter of law, the appellant's acts were neither excusable nor justifiable.
Appellant admitted that he shot his wife and her companion on October 17, 1953, while they were sitting in an automobile parked in front of the Blue Eagle Tavern in Aberdeen. The theory of his defense, on which the trial court refused instructions, was that the killings were necessary to prevent the commission of a felony against him, inasmuch as he had reasonable cause to believe that his wife and Hakkarainen were about to commit and act of adultery which, under our cases, is a crime against the unoffending spouse.
The statute on which appellant relies is RCW 9.48.170 (Rem.Rev.Stat. § 2406), which reads:
'Homicide is also justifiable when committed either----
'(1) In the lawful defense of the slayer, or his or her husband, wife, parent, child, brother, or sister, or of any other person in his presence or company, when there is reasonable ground to apprehend a design on the part of the person slain to commit a felony or to do some great personal injury to the slayer or to any such person and there is imminent danger of such design being accomplished; or
'(2) In the actual resistance of an attempt to commit a felony upon the slayer, in his presence, or upon or in a dwelling, or other place of abode, in which he is.'
This is but a statutory declaration of the common law. State v. Meyer, 96 Wash. 257, 164 P. 926. While it is true that the statutory crime of adultery, unknown to the common law, is a felony by reason of the fact that it is a penitentiary offense, it is not a crime of violence and is not the type of felony which will justify the taking of human life.
* * *" State v. Moore, 31 Conn. 479, quoted with approval in State v. Marfaudille, 1907, 48 Wash. 117, 92 P. 939, 940, 14 L.R.A.,N.S., 346.
The true reason of the rule, as we said in the Marfaudille case, is stated in United States v. Gilliam, 25 Fed.Cas. p. 1319, No. 15,205a:
We have consistently held, in cases decided since the enactment of the statute, that a killing in self-defense is not justified unless the attack on the defendant's person threatens life or great bodily harm. State v. Blaine, 1911, 64 Wash. 122, 116 P. 660; State v. Radar, 1922, 118 Wash. 198, 203 P. 68; State v. Bezemer, 1932, 169 Wash. 559, 14 P.2d 460; State v. Spear, 1934, 178 Wash. 57, 33 P.2d 905.
Adultery is not a crime which imperils the life of the unoffending spouse or threatens bodily harm to him. Appellant cites the cases of State v. La Bounty, 1911, 64 Wash. 415, 116 P. 1073, wherein we held that adultery is not a crime against the state but against the unoffending spouse, who is at liberty to condone it. The case is no authority for the proposition that adultery is a felony committed upon the innocent spouse, within the meaning of RCW 9.48.170, defining justifiable homicide.
We do not, by any means, purport to sanction adulterous conduct nor to underestimate the gravity of its consequences, not the least of which is the great distress it almost inevitably produces in the mind and heart of the innocent wife or husband; but if the thoughts and emotions which it arouses are vindictive, the law has provided a means of vindication. The unoffending spouse may prosecute for adultery or he may forgive; he may obtain his release from the marriage contract and may have his civil remedy against the paramour. But in no event may he take the life of a human being, either to prevent the commission of an act of adultery or to effect his revenge upon the adulterers.
It is not error to refuse a requested instruction which does not correctly state the law. State v. Bixby, 1947, 27 Wash.2d 144, 177 P.2d 689. Hence, the court properly refused appellant's proposed instructions embodying the theory that one may be justified in killing to prevent an act of adultery.
In one of its instructions, the court defined first degree murder as 'the killing of a human being by another, neither excusable nor justifiable, with a premeditated design to effect the death of the person killed.' Second degree murder was defined as ...
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State v. Brown
...as they were understood by the defendant at the time." Id . at 521, 122 P.3d 150. Quoting its prior decision in State v. Nyland , 47 Wash.2d 240, 243, 287 P.2d 345 (1955), the court noted that " ‘a killing in self-defense is not justified unless the attack on the defendant's person threaten......
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