State v. Phillips

• Decision Date: 01 July 1910
• Parties: STATE v. PHILLIPS.
• Court: Washington Supreme Court

109 P. 1047

59 Wash. 252

STATE v. PHILLIPS.

Supreme Court of Washington

July 1, 1910

Department 1. Appeal from Superior Court, Okanogan County; E. W. Taylor Judge.

Charles Phillips was convicted of murder in the second degree, and he appeals. Reversed.

E Fitzgerald, Geo. W. Sampson, and Frank H. Foster, for appellant.

William C. Brown, for the State.

RUDKIN C.J.

The defendant was convicted of the crime of murder in the second degree and prosecutes this appeal from the final judgment and sentence of the court.

A demurrer interposed to the information was overruled, and upon this ruling the first error is assigned. The information, following a form often approved by this court charged: 'That he, the said Charles Phillips, in the county of Okanogan, in the state of Washington, on or about the 25th day of July, 1908, purposely and of his deliberate and premediated malice killed one Rawl Siebert,' etc. The specific objection urged against the information is its failure to charge that Rawl Siebert died within a year and a day from the infliction of the mortal wound. There is no merit in this contention. As said by this court in State v. Day, 4 Wash. 104, 29 P. 984: 'The allegation that the defendant killed the deceased is certainly in effect an averment that the latter died.' See, also, State v. Cronin, 20 Wash. 512, 56 P. 26; State v. Yandell, 34 Wash. 409, 75 P. 988; People v. Sanford, 43 Cal. 29; State v. Sly, 11 Idaho, 110, 80 P. 1125.

Errors are assigned on the instructins of the court, and on the refusal of the court to instruct as requested, and in this connection the appellant is met by a motion to strike the instructions and the requests for instructions from the record, because not embodied in a statement of facts or a bill of exceptions. This latter contention cannot prevail. The charge of the court was made wholly in writing, the requests for instructions were also in writing, and section 395, Rem. & Bal. Code, expressly provides that such instructions and requests for instructions, when filed in the cause, become a part of the record, 'and it shall not be necessary or proper, for any purpose, to embody the same in any bill of exceptions or statement of facts.' A number of assignments of error are based on the court's definition of the terms 'deliberation' and 'premiditation'; but these assignments we need not consider, as they apply only to the crime of murder in the first degree, of which the appellant stands acquitted by the verdict of the jury. Two of the instructions excepted to, defining the right of self-defense, were given in the following language:

'Further as to self-defense: In order to justify the taking of human life on the grounds of self-defense, there must be a necessity, real or apparent, to prevent death or great bodily harm. The prisoner has a right to act on the circumstances as they appeared and are proven, provided you are convinced that the circumstanes, as proven, showed an appearance of an imminent, threatening, present and immediate danger to life or great bodily harm--the jury, and not defendant, must be judges of these matters.

'Self-defense: If you find that defendant was where he had a perfect right to be, and that Siebert so threatened him or so acted towards him as to induce in him a reasonable and honest ground of apprehension that he was in imminent danger of life or limb, Phillips had a legal right at once to use necessary force and means to prevent the threatened injury, even to the extent of taking Siebert's life; but although Phillips may have been where he had a right to be, and Siebert was threatening him with a rifle, still Phillips would have no right to take the life of Siebert without first warning him to desist from his attack, unless you find from the evidence that Phillips was justified in believing that he had no time to give such warning.'

The appellant earnestly insists that the first-quoted instruction is erroneous because of the closing words: 'The jury, and not the defendant, must be the judges of these matters.' While this part of the charge may not be happily worded, we do not think that it is subject to the criticism, or open to the objection urged against it. The court charged the jury that the appellant had a right to act upon appearances, and that the necessity for taking the life of his adversary must be real or apparent. Of course it was for the jury to say, under all the circumstances, whether the danger was real or apparent, and whether the appellant acted from honest convictions induced by a reasonable belief, or otherwise. We do not think that the language complained of imports anything mere than this. While the second instruction complained of may be a correct statement of the law in the abstract, it had no application to the facts before the court in this case. It was no doubt the established rule of the common law that a person assaulted must retreat to the wall or warn his adversary to desist before taking his life in self-defense, provided always there was time and opportunity for making such retreat or giving such warning, in safety. But it was likewise an established rule of the common law that: 'A man may repel force by force in defense of his person, habitation, or property against one who manifestly intends or endeavors by violence and surprise to commit a known felony, such as murder, rape, robbery, arson, burglary, and the like, upon either. In these cases he is not obliged to retreat, but may pursue his adversary until he has secured himself from all danger; and, if he kill him in so doing, it is called justifiable self-defense.' State v. Marfaudille, 48 Wash. 117, 92 P. 939, 14 L. R. A. (N. S.) 346, and authorities cited. In other words the duty to retreat or warn has no application to one against whom a felonious assult is committed with a deadly weapon. It is idle to say that a person assaulted by a highwayman in the street, or by a burglar in his home, must retreat or give warning before he can lawfully resort to the right of self-defense. Without attempting to pass upon conflicting testimony or the credibility of witnesses, the rule as thus stated holds good in this case.

Briefly stated, the situation was this: The appellant and the deceased had some difficulty at Republic some three weeks prior to the homicide in question. As a result of this difficulty, there was testimony tending to show that each had made threats against the life of the other. In anticipation of a...