State v. Odell

• Decision Date: 13 February 1951
• Docket Number: No. 31444,31444
• Citation: 38 Wn.2d 4,227 P.2d 710
• Court: Washington Supreme Court
• Parties: STATE, v. ODELL

Page 4

38 Wn.2d 4

227 P.2d 710

STATE, v. ODELL

No. 31444.

Supreme Court of Washington, Department 1.

Feb. 13, 1951.

Rehearing Denied March 28, 1951.

Del Cary Smith and Robertson & Smith, all of Spokane, Claude K. Irwin, Pullman, for appellant.

Lawrence Hickman, Pros. Atty., S. R. Clegg, Colfax, Edward G. Cross, Ritzville, for respondents.

BEALS, Justice.

The defendant, Wayne Odell, was born in Whitman county October 8, 1927, and, with his parents, resided at Steptoe, in that county.

Very early on the morning of December 24, 1949, the defendant killed Harold Rogers, by shooting him with a shotgun, at the latter's home near Winona in Whitman county. Thereafter, he was, by information, charged with the crime of murder in the first degree, and pleaded not guilty, entering a special plea of insanity or mental irresponsibility, including in the plea a statement that the 'mental irresponsibility still exists.' His trial before a jury resulted in a verdict of guilty as charged, and the jury also returned a special verdict finding that the death penalty should be imposed.

From a formal judgment of guilty, imposing the death penalty, the defendant has appealed, making the following assignment of errors:

'(1) The court erred in admitting in evidence plaintiff's Exhibit U, being the detailed confession of an offense committed five years previously.

'(2) The court erred in giving Instruction No. 23-1/2 which is a follows:

"Irresistible impulse is not insanity and is no defense. An irresistible impulse is an impulse induced by, and growing out of, some mental disease affecting the volitive, as distinguished from the perceptive, powers, so that the person afflicted, while able to understand the nature and consequences of the act charged against him and to perceive that it is wrong, is unable, because of such mental disease, to resist the impulse to do it. It is to be distinguished from mere passion or overwhelming emotion not growing out of, and connected with a disease of the mind. Frenzy arising solely from the passion of anger and jealousy, regardless of how furious, is not insanity.'

'(3) The court erred in permitting the witnesses Harold Scott, Cora Jean Rogers and Emily Rogers to testify on rebuttal that in their opinion the defendant was sane and understood the difference between right and wrong.

'(4) The court erred in refusing to grant defendant's motion for mistrial after the admission in evidence and the reading to the jury of plaintiff's Exhibit U.

'(5) The court erred in denying defendant's motion for a new trial.

'(6) The information does not state facts sufficient to constitute a crime.'

During his seventeenth year, appellant was charged with the crime of forcible rape and, upon his plea of guilty, was sentenced to and served a year in the state reformatory at Monroe. Upon his release, he returned to his home at Steptoe, but, soon thereafter, made his home with an uncle living at Winona, where he completed the last two years of a high school course.

During this period, appellant became acquainted with Cora Jean Rogers, who was about a year younger than appellant. Apparently, the young lady for a while discouraged appellant's attentions, but later they became interested in each other. This association, broken by occasional quarrels, continued until about a week before Christmas, 1949, when Miss Rogers told appellant that she did not wish to see him any more.

On the evening of December 23, 1949, appellant, with his friend Kenneth Broyles, attended a dance in the town of Washtucna, in Adams county. They drove to the dance in appellant's car and, while en route, drank some whisky from a bottle that was in the car. Not long after their arrival at the dance, Miss Rogers arrived, accompanied by Harold Scott. On seeing the young lady, appellant became somewhat disturbed and immediately insisted upon dancing with her, monopolizing her company during most of the evening, in the course of which a somewhat violent quarrel occurred between appellant and Miss Rogers' escort, Scott. Appellant threatened to kill Miss Rogers, stating that he would ruin her before the end of the week. He also attempted to force a fight with Scott (from which he was restrained by his associate Broyles), and threatened to kill Scott. In an attempt to quiet appellant, Scott then took him and Broyles to Scott's car, where, during a period of about three quarters of an hour, some liquor was consumed. During this time, appellant made the statement that he would 'just as soon' kill Scott, and 'take what he got for it.'

On leaving the dance at about one o'clock a. m., Scott remarked to appellant that they should be on friendly terms, to which appellant apparently assented. Scott then took Miss Rogers to her home near Winona and departed.

Appellant and Broyles left Washtucna in appellant's car, with Broyles driving. It appears that there was not much conversation between the men during the journey, and, upon their arrival at Broyles' home near Steptoe, he asked appellant to pass the night there. Appellant declined the invitation, saying that he preferred to return to his home.

The Rogers home near Winona consisted, in part, of two bedrooms, one occupied by the daughter and the other by her parents, the rooms being connected by a hallway approximately eight feet long. There was also a living room and a kitchen. The doors to the house were locked and all the windows screened.

Upon her arrival at home, Miss Rogers retired and went to sleep. At about 4:30 a. m., she was awakened and saw appellant standing by her bed, holding a shotgun which was pointed directly at her. She screamed and pulled the bedclothes over her head. Her scream awakened her father, who arose and came to the door of his bedroom, acompanied by Mrs. Rogers. Several lights in the house were turned on, and appellant was then standing in the living room doorway. Appellant warned Mr. Rogers not to move or he would shoot. Mr. Rogers told him to put the gun down, whereupon appellant made a remark to the effect that he had lost his girl. Mr. Rogers then started toward appellant, who backed into the living room, Mr. Rogers following him. While the two were in the living room and not visible to Mrs. Rogers or her daughter, a shot was fired. Miss Rogers ran into the living room, and saw her father staggering and appellant throwing the shotgun to one side as he departed through the kitchen. Mr. Rogers was mortally wounded and died within a very short time.

Miss Rogers took the family automobile and went for assistance. Mrs. Rogers saw appellant running down the road in the same direction that Miss Rogers had driven the car. Appellant's automobile was found about a mile away from the Rogers home, and he was apprehended in the course of the morning of December 26th, when he was found hiding under the stage of the auditorium at the Winona high school. When discovered, appellant attempted to escape, was fired upon and wounded, and was soon found in a house nearby.

Appellant's trial lasted from March 13th to 21st, inclusive, 1950. He did not take the witness stand. By the evidence introduced on appellant's behalf, it was sought to prove that, at the time of the killing, appellant was insane or temporarily mentally irresponsible. Considerable latitude was allowed in the introduction of this testimony. Dr. Robert Wetzler testified on appellant's behalf as an expert in mental diseases. Dr. William Freeman, appellant's physician, also testified as a witness for him.

Dr. Wetzler testified that he had interviewed appellant at length, and also his parents. The witness testified that appellant had told him that, in 1945, when he was seventeen years of age, he was sentenced to the reformatory for rape, appellant stating that 'he didn't think it was as bas as they said it was.' The witness said that, from statements made to him, it appeared that, in his very early youth, appellant was nervous and unable to mix with other children; that it was hard for appellant to adjust himself in school and that he had difficulty in learning; that the years of his adolescence were somewhat abnormal and that he received no 'sex instruction'; that confinement in the reformatory for a year was, 'of course, traumatic to his personality'; that appellant felt he was not treated well in the reformatory; that, when he returned home, he felt like an 'outcast'; that he was bitter and resentful, and had difficulty in adjusting his life, feeling that people treated him as a convict that he indulged to some extent in intoxicating liquor, and that, when Miss Rogers refused to have anything more to do with him, 'he became lost; he no longer had a source of release for his intense desire of being with the female sex, and of course this was the last blow to his crumbling personality.'

Referring to the time of the murder, the witness testified: 'I would classify Wayne Odell at this time, and, in fact, all his life, as a psychopathic personality and schizoid personality.'

By a long hypothetical question, in which appellant's counsel attempted to embrace all of the relevant facts which were in evidence, including the fact that appellant had served a year in the reformatory, counsel asked the witness whether or not, at the time of the homicide, appellant was able to distinguish between right and wrong. To this question, the witness answered: 'He was incapable of determining what was right or wrong at that time,' later giving the reasons for his answer at considerable length.

Dr. William Freeman, a physician engaged in general practice in Colfax, testified that he had been appellant's personal physician since the summer of 1946. In open court, appellant consented that the witness might testify concerning any confidential matters he had learned from appellant by acting as his physician. The witness testified that appellant had consulted him on several occasions, being of the opinion that he suffered from heart...