State v. Turpin

• Decision Date: 05 August 1930
• Docket Number: 22501.
• Citation: 290 P. 824,158 Wash. 103
• Parties: STATE v. TURPIN.
• Court: Washington Supreme Court

290 P. 824

158 Wash. 103

STATE v. TURPIN.

No. 22501.

Supreme Court of Washington

August 5, 1930

Department 2.

Appeal from Superior Court, King County; James B. Kinne, Judge.

George Turpin was convicted of manslaughter, and he appeals.

Affirmed.

Attwood A. Kirby, of Seattle, for appellant.

Ewing D. Colvin, of Seattle, for the State.

HOLCOMB J.

Appellant was tried, convicted, and sentenced in the lower court of manslaughter. The charge of the information was that he, in King county, this state, on June 16, 1929, willfully unlawfully, and feloniously, with his hands and fists did strike, beat, knock down, and otherwise assault one Yee Yen a human being, thereby mortally wounding Yee Yen, of which mortal wounds Yee Yen then and there languished and died on June 16, 1929.

The theory of the state was that the killing was without justification or excuse, while appellant claimed that he struck the blow in self-defense, and that the death was by unintended accident and misfortune.

Two boys who were companions of appellant at the time of the affray testified as witnesses for the state. The entire record has been read with care. The two companions of appellant, in some particulars, corroborated his testimony that he acted in self-defense. However, their testimony discloses that they were somewhat reluctant and evasive. Appellant testified that the Chinaman who was killed was apparently making threatening motions toward him and that he was afraid of Chinamen and afraid that the Chinaman might have a knife; that the Chinaman ran toward him swinging his hands in the air, whereupon he 'reached out and hit him or rather, more pushed him than hit him,' upon which the Chinaman fell down against the wall of the building and upon the concrete pavement of the sidewalk.

An entirely disinterested witness, a bus boy in a hotel, testified that between 1 and 2 o'clock on Sunday morning, June 16, he was walking east on Columbia street to Third avenue in Seattle, and at the southwest corner, in front of a drug store, he saw several boys, appellant and his companions, who were pulling garbage cans around, making lots of noise and pushing each other around. He turned north, crossed Columbia, and on the opposite curb met a lady, and about ten yards beyond her met a Chinaman, whose actions were in no way unnatural. He walked a short distance further on Third avenue and stopped to look in a window when he heard a sound like some one falling. Upon looking back he saw three boys running toward him north on Third avenue. These boys ran to the next street and turned down it, while he went back and found the Chinaman lying unconscious on the sidewalk of Third avenue, about fifteen feet north of the intersection with Columbia street. The Chinaman moved his hand slightly once, but could not talk.

Another disinterested witness, a reputable attorney of Seattle, testified that at about that hour on that morning he was walking down Third avenue to Columbia and saw several men standing some distance from the corner. As he approached closer, three men commenced running toward him; two men were in advance, and the third one was thirty or forty feet behind. They were apparently running as fast as they could, but as they passed one said, 'More lively.' He observed them sufficiently to be able to describe them and their clothing. He walked a little further and saw the Chinaman lying on the sidewalk with his head against the building some thirty or forty feet from Columbia street.

These two disinterested witnesses saw only three persons leaving the vicinity of the Chinaman where he lay on the sidewalk. Appellant claimed that there were five, including himself, in the party.

The record also is to the effect that the Chinaman was about fifty-five years old, of small statute, and very skinny; that he neither drank intoxicating liquor nor smoked opium; that when found on the sidewalk there was no odor of liquor on his breath. Earlier in the evening he had visited a Chinese friend of his, whom he usually visited on Saturday evenings, and there had a lunch consisting of rice. When put in the police car to be taken to the city hospital, he commenced vomiting and vomited undigested rice. Vomiting was stated by a physician witness who testified to be a symptom and the result of a fractured skull. The testimony also was that the Chinaman died as the result of his skull being fractured at its base.

Police officers testified that two months later appellant told Prosecutor Colvin and a captain of police that he was in California at the time the Chinaman was killed, having left Seattle about the latter part of May or first of June, traveling by auto and train, and arriving in San Francisco about the 15th of June; that he stayed in California two months, when he returned to Seattle, and denied that he knew anything about the death of the Chinaman. Another youth, a friend of appellant, testified that he was in the police station when appellant was being interrogated by a police lieutenant, in the presence of another lieutenant, and that he told the officers that he was in San Francisco at the time the Chinaman was killed; that later appellant told the witness that he had been rattled at the police station when he said he was in California; and that he was going to change his story when his trial came up.

Appellant testified in the trial and admitted that he had talked to Prosecutor Colvin and the police captain, and on the following day had talked with two other police lieutenants. He admitted that he told the officers that he was in California at the time the Chinaman was killed, but claimed in his testimony that he made this statement because of the fact that one of the officers, Lieutenant Yoris, called him certain opprobrious names and vile epithets which made him angry; he offered no explanation of why he told the police captain the day before that he was in California at the time the Chinaman was killed, although he made no claim that that officer called him any vile or opprobrious names.

At the conclusion of all of the testimony appellant challenged the sufficiency of the evidence and asked for an instructed verdict of 'not guilty,' which was denied and, in due time after the verdict, filed his motion in arrest of judgment upon the ground of insufficiency of the evidence and in the alternative for a new trial, which were denied.

The denials of these several motions are assigned as error and argued as one.

Appellant insists that, since the burden was upon the state to introduce sufficient evidence to break down the presumption of innocence and to justify conviction beyond a reasonable doubt before appellant had to assume any burden of introducing evidence, and that since it was shown by the state's own witnesses that the Chinaman was going toward appellant making some kind of motions with his arm, appellant had the right to act in self-defense, that it was conclusively established that he did no more than act under that right, and that his motion for a directed verdict should have been granted; or, if not, his motion in arrest of judgment after verdict.

Counsel for appellant concedes that the law is well established in this state that when the killing is shown and self-defense is pleaded, it is incumbent upon the accused to establish this defense.

It is incontrovertibly established in this case, and in fact not seriously disputed by appellant, that Yee Yen came to his death by reason of a blow struck by appellant. The cause of death was a fractured skull caused either by the force of the blow struck by appellant or by the force with which the Chinaman's head struck the building or the sidewalk.

Upon this state of facts, the sole question for the jury to determine was whether or not appellant was justified in striking the blow which he admits he struck. The jury had all the youths who participated in that affair before them, and by their demeanor, manner of testifying, and interested manifested in the defense, were warranted in deriving the reasonable inference that the other two youths, who were associated with appellant on that occasion, were endeavoring to shield appellant in giving as favorable a version to him of the occurrence as they could.

It was for the jury to decide from all the evidence and reasonable inferences where lay the truth.

Appellant cites our statutes, sections 2392 and 2393, Rem. Comp. Stat., defining murder in the first degree and murder in the second degree; section 2395, Id., defining murder as being any other homicide not excusable or justifiable; and section 2406, Id., providing that homicide is justifiable 'in the lawful defense of the slayer, * * * when there is reasonable ground to apprehend a design on the part of the person slain to commit a felony or to do some great personal injury to the slayer * * * and there is imminent danger of such design being accomplished.'

Section 2404, Id., is then quoted as follows: 'Homicide is excusable when committed by accident or misfortune in doing any lawful act by lawful means, with ordinary caution and without any unlawful intent.'

Section 2416, Id., is also quoted as follows: 'The use, attempt, or offer to use force upon or toward the person of another shall not be unlawful * * *

'(3) Whenever used by a party about to be injured * * * in case the force is not more than shall be necessary;'

The trial court correctly charged the jury that manslaughter is the unintentional killing of a human being done without excuse or justification, by a person while engaged in the commission of an unlawful act not amounting to a felony, or in doing a lawful act in a grossly negligent manner; that in order to constitute manslaughter it is not necessary that there be either...