State v. Smith

• Decision Date: 27 October 1938
• Docket Number: 27181.
• Citation: 196 Wash. 534,83 P.2d 749
• Parties: STATE v. SMITH.
• Court: Washington Supreme Court

83 P.2d 749

196 Wash. 534

STATE v. SMITH.

No. 27181.

Supreme Court of Washington

October 27, 1938

Department 2.

Appeal from Superior Court, Mason County; D. F. Wright, Judge.

Clinton Smith was convicted of manslaughter, and he appeals.

Affirmed.

J. W Graham, of Shelton, for appellant.

Doane Brodie, of Shelton, and Smith Troy, of Olympia, for the State.

BEALS Justice.

During the month of October, 1937, the defendant, Clinton Smith, was by information charged with the crime of murder in the second degree. On his arraignment, defendant pleaded not guilty, and in due time was put upon his trial. The jury returned a verdict of guilty of the crime of manslaughter, and from a judgment upon this verdict and sentence imposed pursuant thereto, defendant has appealed.

Appellant assigns error upon the overruling of his motion for a directed verdict of not guilty; upon the denial of his motion for arrest of judgment, or in the alternative for a new trial; and upon the entry of judgment on the verdict. Appellant also assigns error upon the refusal of the trial court to instruct the jury that the evidence was not sufficient to support a verdict of guilty of murder in the second degree, and upon two instructions which the trial court gave to the jury. Error is also assigned upon the admission of certain evidence over appellant's objection.

During the fall of 1937, appellant was boarding at the home of Mrs Nell Jones, in the town of Hoodsport, Mason county. On the afternoon of October 17th, appellant being then in the house one Charles Carlson, who for several days had been indulging to excess in intoxicating liquor, and being still to some extent under the influence thereof, came to the house and asked Mrs. Jones if she knew where his automobile was, and also if she knew the whereabouts of one Edith Sheehan. Upon Mrs. Jones denying all knowledge as to the whereabouts of either the automobile or Mrs. Sheehan, Carlson became abusive, used considerable vile language, and endeavored to force his way into the house. On the previous day, Carlson had become angry at Mrs. Jones, and while in the possession of a shotgun, had threatened her.

Appellant, who was working on the back porch at the time Carlson called at the Jones house, hearing the altercation, went through the house to ascertain what was going on. The evidence introduced by appellant indicated that both appellant and Mrs. Jones requested Carlson to leave and come back when he felt better, but that he attempted to force his way into the house, and attempted to strike both Mrs. Jones and appellant. Carlson was a powerful man physically, fifty-six years of age, weighing about 180 pounds, and accustomed to work in the woods. Appellant was also a man of considerable strength. Appellant forced Carlson from the doorway on to the porch, striking him twice, and when Carlson was on the porch, struck him a third blow, knocking him from the porch to the ground, the level of which was about fourteen inches below the porch floor. Appellant stepped down on to the ground, and the fight continued, appellant knocking Carlson down several times. Finally, Carlson was unable to rise, and appellant carried him to running water, where he washed Carlson's face, and then with the help of a neighbor placed him in appellant's car and took him to the office of a doctor, whence he was removed to the hospital at Shelton.

Carlson died four days later. Doctor Richter performed an autopsy, and removed a portion of the brain. About four months after Carlson's funeral, his body was exhumed, and a second autopsy performed. It clearly appears from the evidence of the doctors that death resulted from extra-dural hemorrhage and contusion of the brain. One crescent shaped wound was found on Carlson's forehead, which the doctors testified was probably the immediate cause of death, although it was also suggested that death might have been occasioned by the cumulated result of several severe blows upon the face and head. Doctor Richter testified that there were bruises upon Carlson's chest and legs, but that the blows which occasioned these could not have been fatal.

Appellant argues that the state failed to prove certain essential elements either of the crime charged or of manslaughter, in that the burden rested upon the state to prove that the act which resulted in Carlson's death was without excuse or justification, appellant contending that he did no more than defend himself and his landlady, Mrs. Jones, using no more force than was reasonably necessary. The information charged that appellant '* * * with a design to effect the death of one Charles Carlson, a human being, but without premeditation did then and there beat, cut, and wound the said Charles Carlson about his head with some instrument or instruments and in some way or manner to the prosecuting attorney unknown, and did mortally wound the said Charles Carlson,' etc.

Appellant contends that the evidence shows that he struck Carlson only with his bare fists, and employed against him no weapon or instrument whatsoever.

While the evidence indicates that Carlson was a powerful man, appellant also was very strong. He testified that he was forty-one years old, and that he did not know his weight. He testified that he had been working on a fishing boat, and that his arms and shoulders were well developed. While he testified that he was not an experienced fighter, he stated that he did not like to get into trouble with anyone, because, with the muscular development he had, 'someone is going to get hurt if I do.' Appellant testified that he knocked Carlson down three or four times, and that he was at all times during the fight in great fear of receiving severe injury from Carlson. He did not testify, however, that Carlson ever succeeded in striking him.

Dorothy Austin, who was present in the Jones house at the time of the fight, testified that Carlson came to the door and endeavored to force his way into the house, using abusive language to Mrs. Jones; that the witness stepped out on the porch and observed Carlson on the ground, and appellant standing by; that Carlson arose and advanced toward appellant, taking a couple of steps 'with his hands out to grab him;' and that appellant then knocked Carlson down a second time. The witness testified that while Carlson was lying on the ground, appellant kicked him a couple of times in the ribs, and told him to get up and fight some more, whereupon the witness went back into the house.

Mrs. Jones was also on the porch with Dorothy Austin. A woman living a short distance from the Jones house testified that at the time of the fight she heard a woman scream, and opened the door to see what was the matter. She saw the two men in the front yard, and two women in the doorway. She testified that she believed the woman who had screamed said, 'Don't hit him again; you will kill him,' but she did not know which of the women uttered the words.

Appellant testified that at the time of the fight he was wearing some light Congress slippers, with composition soles and rubber heels. There is evidence in the record to the effect that his shoes or slippers had leather soles and leather heels. Appellant denied that he kicked or stamped on Carlson at any time, and although it appeared that some of the wounds on Carlson's face and head might have been the result of kicks or stamping, there was no direct evidence to the effect that appellant struck Carlson's head with his feet. The evidence strongly indicates that at the time of the fight, Carlson was suffering from the effects of excessive drinking.

It is not contended that appellant had any previous grudge against Carlson or enmity towards him. There is no evidence that appellant in the fight used any means of offense other than his fists or, possibly, his feet. Appellant contends that, as no weapon was used, the blow upon Carlson's head, which the physicians testified was probably the cause of his death, could have resulted only from Carlson's striking his head upon a stone when he fell to the ground. While the doctors testified that Carlson had been struck terrific blows, and that they thought it doubtful that such blows could have been struck with the bare fist, no one attempted to testify positively as to just how the wounds had been received. Beyond question, Carlson received a terrific beating, as the result of which he died. Appellant argues that his death occurred from accident or misadventure; that there was no proof of the use of a weapon, or design on appellant's part to kill Carlson; that the evidence did not show that appellant ever became the aggressor; and that the evidence did show that appellant at first fought in defense of himself and Mrs. Jones. Of course, one attacked has the right to repel force with force, and a homicide committed in self-defense, without the use of excessive force, is excusable. We are convinced that, from the evidence, the jury might well have found that appellant used excessive force in the course of his combat with Carlson. In the first place, he knocked Carlson from the porch to the ground, and then stepped down from the porch and knocked Carlson down from three to five times, telling him while lying prone to get up and fight. In a statement made shortly after the fight, offered in evidence by the state and admitted without objection, appellant said: 'I hit him possibly seven or eight times. The main object was to knock him out. I was not wasting any time keeping him away from me.'

Carlson was not armed, and the jury may have believed that appellant had several opportunities to refrain from further combat. He need not have stepped down from the porch; if, as he testified, he was afraid of bodily injury, he could have retired...