State v. Spadoni

• Decision Date: 05 March 1926
• Docket Number: 19737.
• Parties: STATE v. SPADONI.
• Court: Washington Supreme Court

243 P. 854

137 Wash. 684

STATE v. SPADONI.

No. 19737.

Supreme Court of Washington

March 5, 1926

Department 2.

Appeal from Superior Court, Pierce County; Teats, Judge.

Gino Spadoni was convicted of murder, and he appeals. Reversed and remanded.

Robert B. Abel and J. W. Selden, both of Tacoma, for appellant.

Bates &amp Peterson and S. A. Gagliardi, both of Tacoma, for the State.

FULLERTON, J.

The appellant, Gino Spadoni, after a trial had in the superior court of Pierce county, was on the verdict of a jury adjudged guilty of the murder of one Harry Hallen, and sentenced to the state penitentiary for the term of his natural life. This appeal is from the judgment and sentence.

The crime of which the appellant was convicted was committed on one of the streets of the city of South Tacoma, on the night of March 11, 1921. At about 10:30 o'clock on the night of the date given, Hallen was returning to his home from a visit at the home of his father-in-law, when he was shot four times in the body and mortally wounded by some person who had concealed himself behind a telephone pole standing on the margin of the street over which Hallen was passing. Hallen was rendered unconscious by the shots and did not recover consciousness prior to his death, which occurred some half an hour thereafter. Hallen was accompanied at the time by his wife, and she was the only immediate witness of the tragedy. She, too, was wounded by a shot fired by the assassin. The assassin left the scene of the tragedy immediately after the commission of the crime, and although an investigation was immediately entered upon by the detective officers of the Tacoma police force, nothing was discovered pointing to the possible perpetrator of the crime for a considerable time after its occurrence. Just when the appellant was first suspected of being the perpetrator does not appear in the record. He was formally charged with the crime on April 10 1925, nearly four years and one month after it had been committed, and when arrested was in San Francisco, in the state of California.

The appellant's learned counsel have in their brief made some 38 assignments of error. Many of these are the result of the caution of counsel; a single question is suggested in a number of different forms. A number furthermore, relate to matters arising out of circumstances peculiar to the particular trial, which can only by a remote possibility again recur, and our conclusion on certain of the principal questions involved renders it unnecessary to notice them. In our discussion, therefore, we shall not refer to the several assignments in detail. Nor shall we, in the discussion of those we find necessary to notice, follow the order in which they are presented in the briefs.

The first assignment is that the information does not state facts sufficient to constitute a crime. The information (we quote from the copy as it appears in the transcript of the record) omitting the formal parts and the preliminary allegations, reads as follows:

'That the said Gino Spadoni in the county of Pierce, in the state of Washington, on or about the 11th day of March, 1921, then and there being unlawfully and feloniously and with a premeditated design to effect the death of Harry Hallen, a human being, did shoot a pistol loaded with powder and ball at and into the body of the said Harry Hallen, and thereby mortally wounding the said Harry Hallen, from which mortal wounds the said Harry Hallen did die; and that such killing of the said Harry Hallen as herein alleged was neither excusable nor justifiable. * * *'

The objection to the information is that it does not appear therefrom that the death of the person alleged to have been shot and mortally wounded ensued within a year and a day from the time of the infliction of the mortal wound. It is the rule of the English common law that, to constitute felonious homicide, the death of the person receiving a mortal wound must ensue within a year and a day from the time of the infliction of the wound. The rule was regarded as a matter of substance material to the issue. If the death did not ensue within the prescribed time, the offense was not a felony, as the law conclusively presumed that the wound was not the cause of death, and proofs were never admitted to show to the contrary. Wharton on Homicide (3d Ed.) p. 19; 29 C.J. 1083; 8 R. C. L. 801; 15 R. C. L. 747; Louisville E. & St. Louis Railroad v. Clark, 14 S.Ct. 579, 152 U.S. 230, loc. cit. 239, 38 L.Ed. 422. The same rule prevails in the American states, where there is no statute to the contrary. State v. Dailey, 134 N.E. 481, 191 Ind. 678, 20 A. L. R. 1004, and note p. 1006. And such also is the rule as it is announced by the Supreme Court of the United States. Ball v. United States, 11 S.Ct. 761, 140 U.S. 118, 35 S.Ct. 377.

The time of the death being an essential element of the crime, it is the general rule that the time must be alleged in the indictment or information. In the American jurisdictions, at least, no particular form of allegation is required. It is sufficient to state facts showing that the death was instantaneous, or that the wound was inflicted on a certain date, and that the victim died on a later certain date, or that the wound was inflicted on a certain date, and that the victim died within a year and a day from the infliction of the wound; but it is necessary that the fact appear in some form, else the pleading is fatally defective. See citations supra; also, 13 R. C. L. 902; 30 C.J. 107. On principle, the conclusion would seem to be sound. No presumptions obtain in favor of a criminal pleading. With respect to the crime charged, the pleading must be direct and certain, and if it be the rule that the victim of a wound received in a felonious assault must die within a year and a day from the time of the infliction of the wound to constitute criminal homicide, then the pleading, to conform to the requirement of certainty, must affirm that he did so die. The question whether it is the rule of this jurisdiction that the death must ensue within a year and a day seems not to have been judicially determined. It was suggested in the case of State v. Champoux, 74 P. 557, 33 Wash. 339, but the court held that the information did show that the death ensued within a year and a day, and did not notice the principal question. Nor does our statute directly enact the rule into law. It does provide, however, that the common law, in so far as it is not inconsistent with the laws of the state and not incompatible with its institutions or condition of society in the state, shall be the rule of decision in all of the courts of the state. It is also true that our statutes have declared as nonessential much of the technical precision necessary in a common-law indictment, but it is still the rule that the pleading must contain a statement of the acts constituting the offense (Rem. Comp. Stat. § 2055) and must be 'direct and certain, as it regards * * * the crime charged' ( Id. § 2057). We conclude, therefore, that it is the rule that death must ensue within a year and a day from the infliction of a mortal wound in order to constitute criminal homicide, and that the fact must be alleged in the indictment or information in order that a crime be stated.

Turning to the information here in question, we think it is at once apparent that the allegation with respect to the death of the person the appellant is accused of having murdered would be as true did the death ensue after the year and a day from the infliction of the wound as it would be did the death ensue within that time. And this being the effect of the allegation, it follows that the information is not direct and certain as it regards the crime charged. It is, on the contrary, indirect and uncertain with respect to a fact necessary to constitute the crime of murder. It will not do to say that the proofs may or will develop a crime, for this is but to say there is no need of allegation at all.

It follows from the conclusion we have reached as to the sufficiency of the information that the judgment of conviction must be reversed. Since, however, the reversal on this ground is not a bar to a further prosecution for the same offense (Rem. Comp. Stat. §§ 2185, 2316), it is necessary to notice certain matters relating to the trial of which complaint is made and which will become pertinent on a retrial of the cause.

The first of these relates to the identification of the accused. We have hereinbefore recited some of the circumstances surrounding the commission of the homicide, and have stated that the wife of the man killed was with him at the time of the killing. She was, however, unable to give more than a meager description of the person who committed the crime. She observed his size and height and something of the characteristics of his movements, but did not discover his nationality. After the arrest of the accused, she saw him in the county jail, and, of course, saw him in the courtroom at the time of trial. When called as a witness, she was permitted to testify that the accused resembled in his general appearance the person who killed her husband. A person was seen in the vicinity of the place of the homicide a short time prior to the occurrence of the homicide by two other persons. Neither of these was able to give more than a general description of the person they so saw, although one of them spoke to him and was able to say that he was of foreign nationality, possibly Italian. These witnesses also saw the accused at the jail and at the trial, and were permitted to testify that he resembled in size, in height, and in his general appearance, the person they saw near the place of the crime. The accused complains of the admission of this testimony,...