State v. Palmer

• Decision Date: 09 December 1918
• Docket Number: 14761.
• Court: Washington Supreme Court
• Parties: STATE v. PALMER.

176 P. 547

104 Wash. 396

STATE v. PALMER.

No. 14761.

Supreme Court of Washington

December 9, 1918

Department 2.

Appeal from Superior Court, Spokane County; Wm. A. Huneke, Judge.

Charles A. Palmer was convicted of murder in the second degree, and he appeals. Affirmed.

Del Cary Smith, C. T. McDonald, and Geo. F. Cowan Jr., all of Spokane, for appellant.

John B White and Joseph B. Lindsley, both of Spokane, for the State.

MACKINTOSH J.

The jury trying the appellant on an information charging him with the commission of the crime of murder in the first degree returned a verdict of murder in the second degree, after having presented for its consideration testimony on behalf of the appellant in support of his plea of self-defense.

On March 26, 1917, at the town of Milan, in Spokane county, the appellant shot and killed Nels Verback. Several persons among whom was the deceased, had congregated at a pool hall where they had been drinking diluted alcohol, and one of them, the 15 year old son of the deceased, had become hopelessly intoxicated, and was lying on the floor behind a billiard table. At about 7 o'clock in the evening, the appellant entered the pool hall, of which he was the rental agent, and, after viewing the situation there, came out and made some remarks about the condition of the boy, and started to leave, when he was seized by one of the party. He demanded that he be released, which was done. The appellant then turned around and fired three shots, resulting in the death of Nels Verback and one of his sons.

The appellant's evidence tended to establish that after having entered the pool hall, and making some remark that it was wrong to give liquor to a boy, he started to come out, when one of the party entered into a more or less acrimonious discussion with him, and struck at him; that another man grabbed the appellant from behind and pinioned his arms to his sides; that thereupon several other persons grabbed the appellant; that the deceased reached around a post, took the appellant by the neck, and commenced to choke him; that several of the party had hold of him by this time, and all of them were apparently trying to get their hands on him, and he was struck four or five blows on the head; that, while being choked and struck, the appellant managed to get his hand to his hip pocket, and pulled out a revolver and fired.

The appellant had resided in the town of Milan for more than ten years prior to the time of the killing, and had been justice of the peace and a special deputy sheriff. He believed that certain persons in the town had a grude against him, and had threatened to do him bodily harm. While justice of the peace some ten years before the shooting, he had formed the habit of carrying a loaded revolver, and he was so armed at the time he entered the pool hall.

All of the state's witnesses denied that there was any attempt to approach or lay hands on the appellant, except by one of the party, who at one time caught hold of the appellant, but immediately released him, and thereupon the appellant stepped back and shot the two men.

As already noted, the appellant sought to justify the homicide on the ground that it was committed in self-defense.

1. The principal reason urged for the granting of a new trial is that the court did not submit to the jury instructions upon the crime of manslaughter, but withdrew that degree of homicide from the issues in the case. This raises for our consideration the definition of manslaughter as that crime now exists in this state.

The appellant concedes that, unless the facts warrant an instruction upon manslaughter, it would have been error to have given such an instruction, and that the crime of manslaughter is not necessarily included within the charge of murder. This has been held so often by this court that it is not necessary to recite the long list of cases to that effect.

Volumes have been written upon the distinctions between murder in the first degree, murder in the second degree, and manslaughter; and it is probably true that no branch of the criminal law has been more exhaustively treated in both decisions and text-books. But these are all of little assistance to us in view of the peculiar statute in this state. So far as our research has carried us, we have been unable to find that any state in the Union has attempted to define the degrees of murder and manslaughter exactly as our statute defines them. It is true that the framers of our Criminal Code of 1909 lifted from the Code of New York the sections defining murder in the first and second degrees and manslaughter; but, like many purloiners of other people's property, they did not succeed in taking with them all the accessories to the parts which they appropriated.

The New York Code (Pen. Laws [Consol. Laws, c. 40] § 1049), after defining manslaughter as it is defined in section 2395 of Remington's Code, to wit, 'In any case other than those specified in sections 2392, 2393 and 2394 (being murder in the first degree, murder in the second degree, and killing in duel), homicide, not being excusable or justifiable, is manslaughter,' proceeds and enumerates the degrees of manslaughter and provides, among other things, that homicide, when committed without design to effect death, in the heat of passion, shall constitute manslaughter. These sections are omitted from our Code.

At common law and under our statute, up to the time of the passing of the new Criminal Code in 1909, as far as the matter before us is concerned murder in the first degree was the killing purposely and of deliberate and premeditated malice. Murder in the second degree was the killing purposely and maliciously, but without deliberation and premeditation. And manslaughter was the unlawful killing 'without malice express or implied, either voluntarily upon a sudden heat, or involuntarily, but in the commission of some unlawful act.'

The Code of 1909 defined murder in the first degree as the killing with premeditated design to effect the death of the person killed. Murder in the second degree is defined as the killing committed with the design to effect the death of the person killed, but without premeditation. And manslaughter was every other killing not being excusable or justifiable.

It would seem from this that the voluntary killing upon sudden heat, which was formerly included in the crime of manslaughter, has been taken out of that classification by the act, and as the law now stands, every killing which is accompanied by a design to kill is either murder in the first degree or murder in the second degree, depending upon whether that design was or was not accompanied by premeditation. No longer is the intentional killing upon sudden heat, or the intentional killing, no matter how provoked classified as manslaughter. And as soon as it appears that the killing was with a design to effect death, the element of...