State v. Stratton

• Decision Date: 23 December 1932
• Docket Number: 23843.
• Citation: 170 Wash. 666,17 P.2d 621
• Parties: STATE v. STRATTON.
• Court: Washington Supreme Court

17 P.2d 621

170 Wash. 666

STATE v. STRATTON.

No. 23843.

Supreme Court of Washington, En Banc.

December 23, 1932

Appeal from Superior Court, Jefferson County; John M. Ralston Judge.

Ollie Lee Stratton was convicted of murder, and he appeals.

Affirmed.

Joseph H. Johnston and Wm. J. Conniff, both of Port Angeles, and A Henry Packard, of Port Townsend, for appellant.

W. J Daly, Jr., of Port Townsend, for the State.

MITCHELL J.

The information in this case charged Ollie Lee Stratton with the willful, felonious, and premeditated killing of William Frawley, August 26, 1931, in Jefferson county, Wash. On arraignment the defendant entered a plea of guilty, but thereafter, on leave granted, the pleas of not guilty and of mental irresponsibility were substituted. The trial resulted in a verdict of guilty of murder in the first degree and a special finding or verdict that the death penalty be inflicted. The appeal is from a judgment ordering the death penalty.

The facts are about as follows: The deceased was a retired soldier living in Port Townsend. The defendant was an ex-soldier and had served with the deceased in the Ordnance Department at Fort Casey, Wash., and at the time of committing the crime, being unemployed and without funds, was living with his parents at Port Townsend. On the morning of the homicide he procured from a hardware store a rifle and a box of shells, went to the home of the deceased, and shot him in the head from behind, wrapped the body in a blanket, placed it in a Ford coupé belonging to the deceased, gathered up personal effects of the deceased he wanted, including a small amount of money, and left the premises. He drove to the home of his parents, told his mother the car belonged to a friend and that he was going to look for work and to see his sweetheart. He drove the coupé onto the ferry at Port Townsend, crossed over an arm of the Sound to Whidby Island, and disposed of the body of the decedent by throwing it down a bluff onto a garbage dump on the beach, and then went down the bluff and covered the body with boards and an old bed spring, or, as appellant testified, he (appellant) 'goes to the ferry and went over and picked out the place and put him there. It didn't look right to me, it got me, so I went down and fixed him up, and went up to the girl's place.' He and his sweetheart then drove the coupé to Seattle, and shortly after arriving there he went to a bank, represented himself to be William Frawley, the deceased, left a passbook of the deceased with the Seattle bank, and signed a draft for collection on the deceased's account in a Port Townsend bank. He thus got a small amount of money within a few days, at which time he attempted through the Seattle bank to withdraw a larger amount of funds from another account of the deceased in Port Townsend, and at this time was arrested by a Seattle detective to whom he stated that his name was William Frawley. Upon being taken to police headquarters, he still insisted that he was William Frawley and exhibited personal property of the deceased consisting of bank passbooks, Masonic Lodge card, and other articles as means of identification. Shortly, the sheriff of Jefferson county, with whom the appellant was acquainted, arrived, and then the appellant changed his story about the articles saying they had been given to him by two men he met on the ferry. He was taken back to Jefferson county by the sheriff and at first maintained that he did not know the whereabouts of the deceased, but later confessed the crime, giving must of the details, and offered to take the officers to the place where he had hidden the body, if permitted to do so without being handcuffed. He went with the officers to the place, and on walking away with the sheriff after the body had been uncovered, the appellant started talking to himself and said, 'Money, money is the cause of it all,' according to the testimony of the sheriff.

Appellant while testifying at the trial admitted many of the most incriminating facts and circumstances of the crime, while as to others he generally said that he did not remember.

A nonexpert witness was called on behalf of the appellant, and almost at once, upon reference being made to the appellant, was asked, 'What was his disposition, to your knowledge?' and 'I will ask you, did he appear to be good natured?' Objections were sustained to the questions as calling for conclusions, and error is assigned upon the rulings. No offer of proof was made in this respect after the objections were sustained, and besides thereafter the witness was permitted to testify, without objection, very fully with respect to the conduct and conversations of the appellant with reference to a great many persons and things, after which no question of similar import to those objected to was asked. The assignment is without merit.

The next assignment is that in one of the instructions the court did not accurately define murder in the second degree. That is not important now, as the verdict, supported by an abundance of evidence, finds the appellant guilty of a higher crime, namely, murder in the first degree. In addition, appellant requested no insruction upon the subject-matter of the one now objected to, nor was any exception whatever taken to that portion of the instruction now complained of, and therefore it cannot be reviewed. State v. Goddard, 132 Wash. 286, 231 P. 794, and cases cited; and State v. Sholund, 153 Wash. 398, 279 P. 591.

Complaint is made of instructions No. 5 and No. 8, in that each, it is claimed, constituted a comment on the evidence, contrary to the Constitution. It is urged that the first was a comment on the method of killing the decedent and states the fact to be that the defendant was killed by shooting. We do not so understand the instruction. The information charged that the killing was done by shooting, and the instruction as to this feature specifically says: 'So, if you find from the evidence, beyond a reasonable doubt, that the defendant killed William Frawley as charged in the information, then,' etc., thus leaving the question to the jury.

Nor was there any comment on the evidence in that portion of instruction No. 8 referred to by appellant. The criticism, in effect, is that the court took from the jury, or by comment on the facts guided the jury in determining, the question of whether or not the defendant did kill the deceased. But even this detached portion of the instruction, cited by appellant, should not be construed as giving any such impression to the jury, and surely it cannot be so considered when taken in connection, as the rule requires, with another instruction just given to the jury that in order to find the defendant guilty of murder in the first degree as charged in the information they must be convinced beyond a reasonable doubt of all the elements of that crime, enumerated by the court, and among them: 'I. That the defendant on or about the 26th day of August, 1931, did shoot and kill William Frawley, a human being.'

It is further assigned that the court erred in denying a new trial on the ground of misconduct of the prosecuting attorney. The assignment refers to a part of the prosecuting attorney's argument to the jury as follows:

'I thing it is saddest of all when we think of the life being snuffed out of old Bill Frawley without a chance, standing there in his home, filling his pipe, stricken down and life taken from him, his life in the hands of this defendant, who took it for the sole purpose evidently of getting his money.

'Now consider his after acts, he wrapped the remains up in a blanket, and takes it to Island County. Had he dug a shallow grave and buried him it would not have been so bad, if he had only thrown a little bit of earth over him, and let him lie like a soldier, but what does he do, dumps him over a garbage to become food for rats and carnage for gulls, let him lie in the sun and rot, and let the vermin eat him until he is unrecognizable. Poor old Bill Frawley, an honest volunteer of the United States Army, and not even entitled to a decent burial. It seems sad, members of the jury, that we have in this county in which we walk, human beings that would stoop so low. We have the problem Before us now, Before you today in this small city of Port Townsend this problem for consideration and the eyes of the entire state are focused upon you, and God is above giving you strength that you may walk fearlessly and conscientiously forward, and with upright hands and honest hearts perform your duty, to the best of your ability. If you acquit this man by reason of his mental irresponsibility, you are confronted with the same situation that was confronted in the Garrison case, where Ruth Garrison ruthlessly murdered the wife of her sweetheart and afterwards----

'The Court. I don't think that you should bring that up here.

'Mr. Daly. Very well.

'If you find this man guilty as charged and then he should be sentenced to life imprisonment in the state penitentiary have you performed your sworn duty,--the average term of years that a lifer spends in the penitentiary does not exceed eight years, and after this defendant has been in there for a few years he can appear Before a sympathetic parole board and turned out to again do the same act that he did here in this county. Bear

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