State v. Rio

• Decision Date: 19 April 1951
• Docket Number: No. 31492,31492
• Citation: 230 P.2d 308,38 Wn.2d 446
• Parties: STATE, v. RIO.
• Court: Washington Supreme Court

Page 446

38 Wn.2d 446

230 P.2d 308

STATE, v. RIO.

No. 31492.

Supreme Court of Washington, Department 2.

April 19, 1951.

Rehearing Denied June 8, 1951.

H. Earl Davis, Spokane, for appellant.

Lawrence Hickman, S. R. Clegg, Colfax, Ennis & Herman, Spokane, for respondent.

MALLERY, Justice.

In count I of the information filed in Whitman county Grant E. Rio was charged with the first degree murder of Joe Roberge, while engaged in the crimes of burglary and larceny. By trial amendment, the reference to burglary and larceny was stricken.

In count II of the information the defendant was charged with the first degree murder of James Beckner, while engaged in the commission of the crimes of burglary and larceny.

The defendant pleaded not guilty and entered a special plea of insanity and mental irresponsibility to both counts. The jury returned a verdict of guilty with a special finding that the death penalty should be imposed on both counts. The defendant appeals.

The appellant is a single man, twenty-seven years of age. He and Joe Roberge were employed on the farm of James Beckner, about one hundred twenty miles from Spokane. He was on good terms with both Roberge and the Beckners. He and Roberge slept upstairs in the Beckner home, took their meals in the kitchen, had free use of the washroom and hallways, but otherwise were not given the run of the house, although they were invited upon occasion to play cards in the evening in the Beckners' living room.

For a number of days prior to the commission of the crime on December 31, 1949, the appellant had been in Spokane on a protracted drinking spree. He returned to the farm in a taxi on the evening of that day. He had been drinking heavily in the taxi. The Beckners and Roberge had spent the evening playing cards, and had retired at about ten p. m. The appellant had retired earlier. Sometime later the appellant went downstairs, secured and loaded Beckner's shotgun, went back upstairs and shot and killed Roberge in his sleep. He then went back downstairs. Mrs. Beckner had been aroused by the noise of the shot and saw a streak of light under their bedroom door, which was closed. She awakened her husband, the door was then opened and appellant appeared with the shotgun in his hands, which he levelled at the Beckners, who were still in bed. Mrs. Beckner ran into a closet, but the appellant ordered her out, stating that he was going to kill them both. She inquired about the sounds coming from upstairs, and the appellant said, 'That's Joe I killed the * * *.' She suggested that they try to help him, but he deterred her with the statement, 'He'll be dead in a few minutes.' He then permitted Mrs. Beckner to leave the room, and fired the shot that killed James Beckner, as she emerged therefrom. She ran from the house, and traversed several miles of fields to a neighbor's home, where she related what had taken place. Meanwhile, the appellant took the Beckner farm truck and drove into Washtucna, where he gave himself up to the authorities.

None of these facts were denied, and on the trial the appellant relied solely on his special plea of insanity and mental irresponsibility.

Appellant's assignments of error No. 1, challenging the sufficiency of the evidence, No. 21, assigning error in receiving the verdict, No. 22, denying motions for arrest of judgment and for a new trial, and No. 23, in entering judgment and sentence, are all dependent upon our rulings on the more specific assignments of error, and call for no separate treatment herein.

In assignment of error No. 20, appellant contends that it was misconduct of the prosecuting attorney to state, in his final argument to the jury, that "Counsel said we failed to prove a motive. Let's see if there was a motive. I am not saying the evidence proved any particular motive, but was there a motive in this case that may have existed, and may help you in deciding this case. Counsel says there wasn't. Let's consider the evidence for a moment. Suppose I were to tell you that the motive was rape--let's see how that would fit the facts in this case--"

Counsel objected to the statement, the court instructed the jury to disregard it, and there was no motion for a mistrial. This statement of the prosecutor was made in answer to appellant's counsel who had stressed the state's failure to prove a motive for the crime. It was not an attempt to evade former rulings of the court by attempting to get incompetent and excluded evidence before the jury, as was done in the cases cited by appellant. On the contrary, it falls within the rationale of those cases which permit a reply to the argument of counsel on a subject opened up by him. State v. Engstrom, 86 Wash. 499, 150 P. 1173; State v. Wright, 97 Wash. 304, 166 P. 645; State v. Benton, 150 Wash. 479, 273 P. 731; State v. Birch, 183 Wash. 670, 49 P.2d 921; State v. Lindsey, 192 Wash. 356, 73 P.2d 738; State v. Johnson, 195 Wash. 545, 81 P.2d 529.

We are not required to commend the prosecutor's statement in order to hold that it was not prejudicial error requiring a new trial.

Appellant's assignments of error Nos. 4, 5, 6, 7, and 8 are directed to the court's refusal to strike the reference to burglary in count II of the information, and to the instructions given by the court on the subject of burglary. They are treated together in appellant's brief, and will be so treated here.

It is appellant's theory that there was no evidence of burglary, because he was domiciled in the Beckner home, and that there was no evidence of an intent to commit any crime in the Beckner bedroom, other than the killing itself.

Rem.Rev.Stat. § 2392, provides, among other things, the following:

'The killing of a human being * * * is murder in the first degree when committed * * *.

'3. Without design to effect death, by a person engaged in the commission of, or in an attempt to commit, * * * burglary * * *.' (Italics ours.)

Rem.Rev.Stat. § 2579, provides, among other things: 'Every person who, with intent to commit some crime therein shall * * * enter the dwelling-house of another * * * or part thereof, or a room * * * shall be guilty of burglary in the second degree * * *.'

It is not contended that the appellant was an invitee or permitted access to the Beckners' bedroom, upon any occasion, as was the case of the living room when he was invited to play cards. The appellant committed an assault upon Mrs. Beckner with a shotgun, after entering the bedroom, by threatening to kill her. These facts meet the requirement of the statutes.

Appellant contends that for a person to be guilty of burglary, the breaking and entering must be of the 'dwelling-house of another,' and that the entire house occupied by the Beckners, Roberge and himself, was his dwelling. This, of course, is contrary to the facts. The area to which the appellant had free access was limited, and the fact that the appellant was living in one part of the premises does not establish such a right in the dwelling as to preclude his prosecution and conviction for the burglary of another part.

It is a general principle of law that '* * * if a servant, guest, or other person, being lawfully in a house, enters a room which he has no right to enter, with felonious intent, by breaking or opening an inner door, it is as much burglary as if he had entered by breaking an outer door or window. * * *' 12 C.J.S. Burglary, § 6, p. 671.

It is stated in 12 C.J.S., Burglary, § 11, p. 675, that '* * * a servant, or boarder, or joint occupant of a room, * * * is guilty of burglary if he exceeds his rights either with respect to the time of entering or the room into which he enters; and a servant, or a guest or boarder, with the right to be in the house, may be convicted of burglary on proof that he broke and entered at a time or place beyond his authority.'

In State v. Corcoran, 82 Wash. 44, 143 P. 453, L.R.A.1915 D, 1015, the defendant was convicted of burglary when he entered his master's store outside of business hours, even though his master had given him a key to the premises, because it was held the defendant's right to entry was restricted and not unlimited, and that the master had limited his right of entry to the premises to store hours. In that case the court applied the principle that a person is guilty of burglary if he exceeds his rights with respect to the time of entering.

In U. S. v. Bowen, Fed.Cas.No. 14,629, it was held that a servant lodging in a house is guilty of burglary if he breaks and enters the sleeping room of his mistress with intent to kill her. In the case of Page v. State, 170 Tenn. 586, 98 S.W.2d 98, 99, Wharton's Criminal Law, 1279, § 976, is quoted with approval: "A burglary may be committed by a breaking on the inside; for though a thief enter the dwelling house in the nighttime, through the outer door left open, or by an open window, yet if, when within the house he turn the key, or unlatch a chamber door, with intent to commit felony, this is burglary. Hence where a servant, who sleeps in an adjacent room, unlatches his master's door and enters his apartment, with intent to kill him, or to commit a rape on his mistress, it is burglary. * * *" See also State v. Howard, 64 S.C. 344, 42 S.E. 173, 58 L.R.A. 685.

Since we do not agree with appellant's theory of the law on the subject of burglary, we find that this series of assignments of error are not well taken.

In assignment of error No. 3, the appellant contends that the court violated Washington constitution Art. IV, § 16, which provides: 'Judges shall not charge juries with respect to matters of fact, nor comment thereon, but shall declare the law.'

This error is based upon the following incidents:

'Q. Now with reference to the events that occurred in the Beckner bedroom, you said you saw the defendant enter the bedroom at that time and he had a gun in his hand and he threatened----

'Mr. Davis: This is all a part of their case in chief----

'The Court: The...