State v. Smith

• Decision Date: 14 April 1921
• Docket Number: 16354.
• Citation: 115 Wash. 405,197 P. 770
• Court: Washington Supreme Court
• Parties: STATE v. SMITH et al.

197 P. 770

115 Wash. 405

STATE v. SMITH et al.

No. 16354.

Supreme Court of Washington, En Banc.

April 14, 1921

Appeal from Superior Court, Grays Harbor County; John M. Wilson Judge.

Britt Smith and others were convicted of murder in the second degree, and they appeal. Affirmed.

Geo. F. Vanderveer, of Seattle, for appellants.

Herman Allen, of Chehalis, and J. H. Jahnke and C. D. Cunningham both of Centralia, for the State.

MITCHELL J.

On November 11, 1919, Warren O. Grimm, Ben Casagranda, and Arthur McElfresh, members of the American Legion, were killed in Centralia, Lewis county, Wash., while participating in a patriotic parade, the first anniversary celebration of the signing of the Armistice.

Britt Smith, O. C. Bland, Bert Faulkner, Ray Becker, John Doe Davis, James McInerney, Loren Roberts, Eugene Barnett, Mike Sheehan, Bert Bland, Ole Hanson, John Lamb, and Elmer Smith were charged by an information with the crime of murder in the first degree for the killing of Warren O. Grimm. Davis and Hanson escaped, and were never captured. The other defendants pleaded not guilty, and in addition Loren Roberts entered a special plea of not guilty by reason of insanity. At the trial, upon the conclusion of the state's case in chief, upon motion of the defendant and by order of the court, Bert Faulkner was discharged. The jury acquitted Elmer Smith and Mike Sheehan, found Loren Roberts not guilty by reason of insanity, and convicted the rest of the defendants on trial of the crime of murder in the second degree. Those convicted, viz. Britt Smith, O. C. Bland, Ray Becker, James McInerney, Eugene Barnett, Bert Bland, and John Lamb, have appealed.

The tragedy occurred on Tower avenue which runs north and south. The avenue is intersected at right angles by Second street and by Third street north of Second street. The avenue is 80 feet wide and Second and Third streets 60 feet each. The southeast corner of the avenue and Second street is occupied by a stable fronting 50 feet on the avenue. Adjoining it on the south is the Avalon Hotel, a two-story rooming house, fronting 25 or 30 feet on the avenue. Across the avenue, in front of the last-mentioned buildings, are two business houses. The northeast corner of the avenue and Second street is occupied by a building, north of which there is a lot of about 100 feet frontage, on the north part of which is situated a small residence set back from the avenue. About 125 feet north of Second street is the south wall of the Arnold Hotel, a two-story rooming house, fronting about 30 feet on the east side of Tower avenue. The northwest corner of the avenue and Second street is occupied by a two-story brick business block, fronting 50 feet on the avenue; adjoining it on the north is the Roderick Hotel, fronting about 30 feet on the avenue; adjoining it on the north is the I. W. W. Hall, fronting about 25 feet on the avenue, and adjoining it on the north is a One Cent to One Dollar Store. On each side of Tower avenue north of the buildings referred to, and as far as Third street, the property consists of buildings separated by lots, or parts of lots. The sidewalk on the west side of the avenue and in front of the hall is 16 feet wide. Another place of inportance in this case is what is called Seminary Hill. It is unsettled, and is situated 400 years east from the I. W. W. Hall, and has an elevation of about 75 feet above Tower avenue. The avenue at the hall, and for a short distance each side of the front of the hall, is in plain view from Seminary Hill.

On September 2, 1919, Britt Smith rented the building for the I. W. W. Hall for four months. The lower floor in the front was fitted up and used by the I. W. W. for assembly purposes. Britt Smith resided in the rear part of the building on the ground floor, and acted as secretary for the I. W. W. The place was local headequarters for members of the organization. In it they held public meetings and engaged in propaganda work, held conferences, and kept their literature, which was sold and distributed.

It was the contention of the prosecution at the trial that defendants acted pursuant to a prearranged plan to shoot and slay members of the Centralia or Grant Hodge post of the American Legion on passing the I. W. W. Hall in the parade, and that the killing of Warren O. Grimm was wholly unprovoked. On the other hand, it was the theory of the defendants on trial that the business men or Commercial Club of the city had recently planned and threatened to raid the I. W. W. Hall on the occasion of this celebration, and that they used the members of the post as a means to accomplish that purpose; and that the members of the post were the aggressors, while the defendants only defended themselves and their property.

The defendants were I. W. W.'s. Nearly all of them in testifying admitted they were provided with dangerous weapons, and many of them admitted the stations they occupied at the time of the shooting. There was testimony showing numerous conferences and preparations on the part of the defendants (different ones of them from time to time) for several days, including the 11th of November and up until the time of the shooting. About 1 o'clock that day Bert Bland, Loren Roberts, and Ole Hanson by somewhat different ways went to Seminary Hill. They were provided with heavy clothing, and carried a suit case containing arms, ammunition, and foot. The former was armed with a 25-caliber Colt's automatic pistol and a 32-25-caliber Winchester rifle, the latter of which he shot some eight times. Loren Roberts was armed with a 22 high-power Savage rifle, which he shot a number of times. (Counsel for appellants in his brief says: 'One of these bullets probably killed Arthur McElfresh.') Hanson was armed with a 250-3000 Savage rifle, which he shot a number of times. A total of 20 or 25 shots were fired by these three men. There is evidence to show that Davis (not captured) and appellant Barnett took stations at the south front window on the second floor of the Avalon Hotel, 75 feet south of Second street--a room rented and occupied for several nights before by Bert Bland. There is testimony that Barnett owned and was armed with a 38-55 Winchester rifle (the only one of that size among the defendants), and that a number of shots were fired from that window. Warren O. Grimm was killed by a 38-55 Winchester bullet. John Lamb and O. C. Bland were in a front room, upstairs in the Arnold Hotel, armed with a rifle and revolver, whence shooting was done, as testified to by the state's witnesses. The rest of the defendants who were tried, other than Elmer Smith, were stationed in the I. W. W. Hall, nearly all of whom it was shown were armed.

The parade took the same route as that traveled on similar occasions for several years. It formed at the city park shortly before 2 o'clock. It was composed of a number of more or less independent divisions, the first comprising members of the Elks Lodge; the second, a band; third, a contingent of boy scouts, marines, and sailors; fourth, the Chehalis post of the American Legion; fifth, the Centralia post of the American Legion; and sixth, a few automobiles, carrying Red Cross nurses in uniform. The Centralia division of the American Legion was under the direction of its post commander, Warren O. Grimm. In this order the parade moved east on Main street to Pearl street thence to Tower avenue, thence north on the east side of the avenue to Third street, where it turned and retraced its way on the west side of the avenue. It was the program to return to the High School auditorium south of the city park, where partiotic exercises were to be held. The soldiers, or ex-soldiers, in uniforms, were marching in platoons that were supposed to be separated from each other regularly by three or four paces. The Centralia post consisted of 70 or 80 men, or eight platoons. It was testified to that in making the turn at Third street the distance between the platoons became more or less unsettled. On reaching a point at about the intersection of Second street and the avenue, Warren O. Grimm, at the head of his division, gave the command, 'Halt; close up!' It is the proof of the state that while the movement required by the order was being executed a shot was fired into the parade column of the Centralia soldiers from either the Avalon Hotel or the I. W. W. Hall, and that two or three other shots were instantly fired into them from near by, and that these were in a few moments of time followed for several minutes by a volley or fusilade from Seminary Hill, the Avalon, and Arnold Hotels and the I. W. W. Hall, consisting of 50 to 150 shots altogether, as fixed by various estimates; that upon realizing the situation the Centralia soldiers broke for shelter, running to the northwest and southwest for protection behind the buildings, except a few, who, upon noticing the shooting from the hall, attempted to enter it, but were driven back by pistol or gun fire from within, at which time a soldier named Pfitzer was disabled by a shot in the left arm; that Warren O. Grimm was shot at the point at which he was standing when he gave the order, and ran and staggered southwesterly to the rear of the building on the southwest corner of the two streets, where he fell, mortally wounded; that Ben Casagranda was mortally wounded near Second street as he turned the northwest corner of the two streets; that another soldier was badly wounded near the same place, and that Arthur McElfresh was shot and instantly killed, falling against the north wall of the store situated north of the I. W. W. Hall; that others were more or less wounded by the gun fire; that the attack was wholly unexpected by the soldiers, none of whom was armed, other than small arms carried...