State v. Stone
| Decision Date | 11 August 1932 |
| Docket Number | 23794. |
| Citation | 13 P.2d 427,169 Wash. 233 |
| Court | Washington Supreme Court |
| Parties | STATE v. STONE. |
Department 2.
Appeal from Superior Court, Pacific County; H. W. B. Hewen, Judge.
J. F Stone was convicted of murder, and he appeals.
Affirmed.
Fred M. Bond, of South Bend, for appellant.
John I O'Phelan, of Raymond, and John J. Langenbach, of South Bend, for the State.
Appellant was prosecuted in the court below for murder in the first degree, found guilty by a jury which recommended that the death sentence be not imposed, and the trial court accordingly sentenced him to life imprisonment. This appeal results.
The information, omitting the formal parts, reads: 'That he the said J. F. Stone on the 12th day of August, 1931, in Raymond, Pacific County, Washington, then and there being without any excuse or justification therefor did then and there wilfully wrongfully, maliciously and feloniously with a premeditated design to effect the death of a human being to-wit, George John, did then and there wilfully, wrongfully, maliciously and feloniously shoot, wound and kill the said George John with a revolver loaded with powder and ball, which he, the said J. F. Stone, then and there held in his hand and did then and there shoot and discharge the said revolver at, against and into the body of said George John and did thereby mortally wound and kill the said George John contrary to the form of the statutes,' etc.
This information was filed in the office of the clerk of the superior court of Pacific county, Wash., on August 15, 1931.
Before entering his plea of not guilty to the information appellant demurred to it upon the grounds that it does not state facts sufficient to constitute the crime of murder in the first degree; that it does not state facts to constitute any crime or offense whatsoever against the laws of the state of Washington; that it does not state facts sufficient to give the court jurisdiction of any subject-matter; that the court has no jurisdiction of the subject-matter mentioned in the information; that the court does not have any jurisdiction over the defendant.
The trial court overruled the demurrer, which constitutes the basis of the first claim of error on the part of appellant.
It is asserted by appellant that the information is insufficient for two reasons: (a) It does not allege that deceased died within a year and a day; (b) it does not allege that the deceased died in the county of Pacific, or within the state of Washington.
Great reliance is placed by appellant on our own case of State v. Spadoni, 137 Wash. 684, 243 P. 854, 855, and on Ball v. United States, 140 U.S. 118, 11 S.Ct. 761, 35 L.Ed. 377.
The Spadoni Case was an unusual one, in that the information therein alleged that Spadoni, in Pierce county, Wash., '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. * * *'
It is to be noted that the crime charged was that of the murder of the deceased on March 11, 1921, and he was formally charged with the crime on April 10, 1925, nearly four years and one month after it had been committed. Although the information charged that the felonious assault with a premeditated design to effect the death of the deceased occurred in Pierce county more than four years Before , there was no allegation that the death occurred in Pierce county, Wash., or that it occurred within a year and a day after the assault was committed. It was there observed that at common law, to constitute a 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, which was regarded as a matter of substance, material to the issue, and, if death did not result within the prescribed time, the offense was not a felony, as the common law conclusively presumed that the wound was not the cause of the death, and proofs were never admitted to show to the contrary.
Neither that case nor the Ball Case, cited by counsel, have any controlling influence here. In the information Before us, it is precisely and definitely stated that on the day alleged, which was but three days Before the date of the filing of the information, in Pacific county, Wash., the malicious and felonious assault with a premeditated design to effect the death of John was then and there willfully, wrongfully, and maliciously committed by shooting, wounding, and killing John with a revolver loaded with powder and ball then and there held in the hand of defendant, and that he did then and there and thereby mortally wound and kill John.
The primary and accepted meaning of 'then,' according to Webster, is 'at that time.' It also has a secondary meaning, 'soon afterward, or immediately.' The primary and accepted meaning of 'there,' according to Webster, is 'in or at that place.' Consequently, there can be no possibility of a misunderstanding on the part of appellant as the accused, as to what was intended, when it was alleged that the shooting, mortally wounding, killing, and death of John all occurred on August 12, 1931, in Raymond, Pacific county, Wash.
Moreover, in State v. Baldwin, 15 Wash. 15, 45 P. 650, this court held that the Ball Case was decided under the common-law rule, which is not applicable here under our statutes. It does, however, support the reasoning of the author of the opinion in the Spadoni Case, that under the common law, where the assault and the result of the assault, that is, the death, on the face of the information, appeared to have been so widely apart in time even under our statute, Rem. Comp. Stat. § 2055, that the pleading must contain a statement of the acts constituting the offense and, under section 2057, supra, must be direct and certain as regards the crime charged, the information was defective in form and substance.
Moreover, this case is like the case of State v. Champoux, 33 Wash. 339, 74 P. 557, 559, where the allegation of the information as to when the death occurred after the assault was much more defective than in the instant case. It was there alleged that the assault was made on November 5, 1902, and that the deceased 'then and there languished, and languishing died,' and, the information being filed on November 8, 1902, it was held that the allegation of the information was sufficient to charge that the death, although after alleging that the deceased languished, occurred within a year and a day after the assault.
Regarding the second contention against the sufficiency of the information that it does not allege the place of the death of John, we think what we have said Before sufficiently answers that complaint. A number of cases, including the Ball Case by the United States Supreme Court, are cited and quoted as to this contention, but they are not apt. For example, State v. Rector, 158 S.E. 212, 155 S.E. 385, is extensively quoted by appellant, and it is asserted that that court held an indictment fatally defective for the reason that it failed to allege the place of the death of the deceased.
Appellant manifestly misconceives the decision quoted in that case, for upon examining the opinion it seems that, under an allegation in an indictment more defective than the one in the case Before us, which the trial court had quashed on two grounds, was affirmed by the appellate court on only one ground, namely, that the indictment was found by grand jurors, part of whom were not qualified to serve as such grand jurors. The court distinctly held that the trial judge committed error in quashing the indictment in the case because of the supposed failure of the instrument to allege the place of the death of the deceased. It was there held that an indictment stating the county where the shooting occurred and alleging that defendants 'then and there * * * killed and murdered' sufficiently showed the place of deceased's death. To the same effect is Alderson v. State, 196 Ind. 22, 145 N.E. 572, on which appellant also relies. The indictment in that case was somewhat similar to the information in State v. Champoux, supra.
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