State v. Rader

• Decision Date: 06 January 1922
• Docket Number: 16736.
• Citation: 203 P. 68,118 Wash. 198
• Court: Washington Supreme Court
• Parties: STATE v. RADER.

203 P. 68

118 Wash. 198

STATE v. RADER.

No. 16736.

Supreme Court of Washington

January 6, 1922

Department 1.

Appeal from Superior Court, King County; Calvin S. Hall, Judge.

Ingram Rader was convicted of murder in the second degree and he appeals. Reversed, and new trial awarded.

John F. Dore, of Seattle, for appellant.

Malcolm Douglas and John D. Carmody, both of Seattle, for the State.

FULLERTON J.

The appellant, Rader, was informed against for murder in the first degree for killing one Bud Dean Curtis. At the trial the jury returned a verdict finding him guilty of murder in the second degree. This appeal is from the judgment and sentence pronounced on the verdict.

The errors assigned relate solely to certain instructions given by the court to the jury, and to the refusal of the court to give certain requested instructions. To an understanding of the pertinency of the objections made, a brief review of the facts is necessary. In the early part of the year 1920, the appellant, together with one Knight, was engaged in the wood business near Lake City, in King county, under the firm name of Ranight Fuel Company. Near the middle of January, 1920 Curtis and his wife entered the employment of the company. Curtis worked in the woods, and Mrs. Curtis kept the books of the concern, and with her sister, Mrs. Patterson, whose husband was also in the employ of the company, attended the telephone calls. Mrs. Curtis seems also at times to have worked at manual labor in the woodyard. On February 8 following, Curtis and Patterson quit the employment of the fuel company, leaving their wives at the fuel company's place of business; the wives continuing in the duties they had theretofore performed. Between this time and the time of April 2, 1920, both Curtis and Patterson visited their wives but whether once or more the evidence of the wives disagrees. It is in evidence, however, that Curtis came to the place of business on the Friday of April 2, and in the presence of Mr Knight, Mrs. Patterson, and the appellant endeavored to pursuade Mrs. Curtis to go away with him. On her refusing so to do he turned to the appellant and accused him of interfering with his family affairs, saying to the appellant that he had broken up his home, and that when he came for him he would need his gun. Curtis then packed certain of his personal belongings in a valise and left the place. He returned the next day shortly before the noon hour, in the company of a truck driver, who came to the place for wood. At this time Mrs. Curtis was working in the woodyard, ricking wood. The appellant was driving a team, dragging logs from the woods into the woodyard. Several other persons were engaged in duties in and about the yard. Curtis on reaching the yard got down from the truck, went over to his wife, and engaged in a conversation with her. While so conversing the appellant came into the yard, driving the team. Curtis started towards him, saying, 'Rader, get your gun; I am coming after you,' pulling off his coat at the same time. The appellant apparently made no effort either to get away or defend himself, and Curtis on reaching him struck him, knocking him down. Curtis then turned to his wife, put his arm around her, and entreated her to go away with him. The appellant then got up, went to his office tent some distance away, and procured a revolver which he put into his pocket. He then returned to the woodyard. Curtis in the meantime had gone to the loading platform, and was assisting the truck driver mentioned in loading the truck with wood. When he saw the appellant returning, he got down from the loading platform and started towards the appellant. The appellant turned to one side, telling Curtis to keep away. Curtis continued his advance, when the appellant took the revolver from his pocket, telling him to stop. Curtis kept advancing, at the same time picking up rocks and sticks and hurling them at the appellant. The appellant then fired three shots, the third of which struck Curtis in the groin. Curtis was then close upon the appellant, and lunging forward grabbed him around the lower part of the body and raised him from the ground. While in this position the appellant fired two shots into Curtis' back; Curtis dying from the effects of the shots a few hours thereafter.

The foregoing facts are gathered from the testimony of the witnesses for the state; the appellant did not testify himself, nor did he call any witnesses on his own behalf.

The statute defines homicide as follows (Rem. Code, § 2390):

'Homicide is the killing of a human being by the act, procurement or omission of another and is either (1) murder, (2) manslaughter, (3) excusable homicide or (4) justifiable homicide.'

Murder in the first and second degrees is defined, in so far as the definitions are applicable here, in the following language (see Rem. Code, § 2392, 2393):

'The killing of a human being, unless it is excusable or justifiable, is murder in the first degree when committed * * * with a premeditated design to effect the death of the person killed. * * *

'The killing of a human being, unless it is excusable or justifiable, is murder in the second degree when * * * committed with a design to effect the death of the person killed, * * * but without premeditation. * * *'

Manslaughter is defined (section 2395):

'In any case other than those specified * * * homicide, not being excusable or justifiable, is manslaughter.'

The appellant, in writing, requested the court to instruct the jury in the statutory language on the different degrees of homicide. This the court declined to do, but gave the following:

'Under the laws of this state the killing of a human being is murder in the first degree when committed with a premeditated design to effect the death of the person killed. Premeditated means thought over beforehand, and for any appreciable length of time, however short. When a person after any deliberation, forms a design to take human life, the killing may follow immediately after the formation of the settled purpose, and it will be murder in the first degree. The law requires some space of time in which a design to kill is deliberately formed.

'Murder in the second degree is the killing of a human being when committed with a design to effect the death of the person killed, but without premeditation.

'The killing of a human being, unless it is excusable or justifiable, is manslaughter when it is committed without design to effect death and without premeditation.

'Before you are entitled to find the defendant guilty of murder in the first degree, as charged in the information, the state must convince you beyond a reasonable doubt of all the following elements of that crime: (1) That the defendant, on or about the 3d day of April, 1920, did shoot and inflict wounds upon Bud Dean Curtis with a revolver pistol; (2) that the defendant did this act with a premeditated design to effect the death of said Bud Dean Curtis; (3) that as a result of the said wounds so inflicted the said Bud Dean Curtis died, on or about said 3 day of April, 1920; (4) that the said act upon the part of the defendant occurred in King county, state of Washington. If you find

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