State v. Wilson

• Decision Date: 10 May 1951
• Docket Number: No. 31542,31542
• Citation: 231 P.2d 288,38 Wn.2d 593
• Court: Washington Supreme Court
• Parties: STATE, v. WILSON et al.

Page 593

38 Wn.2d 593

231 P.2d 288

STATE, v. WILSON et al.

No. 31542.

Supreme Court of Washington, en Banc.

May 10, 1951.

Sanford Clement, Vancouver, Irvin Goodman, Leo Levenson, Portland, Or., of counsel, for appellants.

R. DeWitt Jones, Donald C. Blair, Vancouver, Raymond C. Sly, Stevenson, for respondent.

HILL, Justice.

Turman G. Wilson and Utah E. Wilson were convicted of kidnapping in the first degree and murder in the first degree, with a recommendation by the jury that the death penalty be inflicted upon each of them for each offense. From the judgments of conviction and sentences of death, this appeal is taken.

The evidence-in-chief by the state, briefly summarized, is that Jo Ann Dewey was in the bus depot at Portland, Oregon, at about 10:25 p. m. Sunday, March 19, 1950, and had purchased a ticket to go to Vancouver, Clark county, Washington. She later telephoned her mother from the bus depot in Vancouver concerning a ride to her home, and was told to go to St. Joseph's Hospital and come home with a neighbor who was employed there. Between 11:30 and midnight, a woman's screams were heard by nurses in the hospital and by residents in a nearby apartment house. Witnesses attracted by the screams told of seeing of woman beaten and placed in a dark, trunk-type sedan which was driven away before the two men involved could be identified except generally as to size and build.

The police were immediately notified of the occurrence, and one of the officers sent to investigate found, in the street near where the sedan had been standing, a beer bottle of the type called a 'stubby.' That it had been opened quite recently was evidenced by the fact that the remaining beer 'was fresh enough so it had bubbled up' and the officer 'noticed large bubbles in the bottle.' Utah Wilson's fingerprints were found on this bottle.

Also found on the ground in proximity to the place where the sedan had been, were the handle of Jo Ann Dewey's purse and a barrette belonging to her.

Jo Ann Dewey never reached the hospital. It was not until Sunday, March 26th, that her nude body was found in the Wind river, in Skamania county, some fifty-five miles easterly from the scene of the kidnapping. Her death was caused by carbon monoxide poisoning. Prior to her death, which a doctor testified must have occurred within an hour or two of the kidnapping, she had been brutally beaten about the head and face, her teeth had been fractured and knocked loose, and she had been out behind her right ear. While unconscious or immediately after her death, she had been sexually violated.

Turman and Utah Wilson were driving a dark, trunk-type Buick sedan on Sunday, March 19th. They left Silverton, Oregon, some sixty miles from Vancouver, at dusk that day; and it was about 6:45 a. m. Monday, March 20th, when they were seen by their brother Grant Wilson and his wife at their home two miles east of Camas and some sixteen miles east of Vancouver. The state's only witness as to their movements during the intervening period was Grant Wilson, who testified as to their statements to him. Those statements placed them in a theater in Portland, Oregon, at the time of the kidnapping. They told him that they had returned to their mother's home at Green Mountain, some six miles north and west of Camas, at about 3:00 or 3:30 that morning, but, because they saw three cars in the vicinity which they thought belonged to law enforcement agencies, they drove by and continued on to Grant's instead of staying at their mother's as they had intended. Without waking Grant, they parked the Buick and took a Pontiac, and then drove past their mother's again. As the cars were still there, they stayed in a wooded area until morning, and then returned to Grant's at about 6:45 a.m. Their reason for their actions, as given by Grant, was that: '* * * Turman felt they were looking for him because of his prior experience with the Vancouver and Portland police. They had been just after him all times and he felt that since the police were there they were after him for something he didn't know what.'

Without tracing their movements through the next week (most of the time spent in Oregon), as related by them to Grant, suffice it to say that Turman and Utah left for California late Monday, March 27th, in an Oldsmobile that Turman, using the name of Ted E. Davis, had purchased in Portland March 22nd. When arrested in Sacramento, California, March 30th, the brothers were registered at a motel under fictitious names.

The first assignment of error goes to the question of whether the evidence outlined above was sufficient to take the case to the jury, it being urged that the trial court erred in refusing to grant appellants' motion for a directed verdict of acquittal at the conclusion of the state's case.

Although no one positively identified Turman and Utah as the men who had seized Jo Ann Dewey and driven away with her, the men described by witnesses to the assault were about their build and the car seen by the witnesses resembled the Buick sedan which Turman and Utah were driving that night. Utah's fingerprints on the recently opened beer bottle afford an identification that completely disposes of appellants' contention that there was no evidence to show that Utah was in Clark county at the time of the kidnapping. In Parker v. Rex, 14 C.L.R. (Austr.) 681, 3 B.R.C. ----, it was said: '* * * 'A finger print is therefore in reality an unforgeable signature. That is now recognized in a large part of the world, and in some parts has, I think, been recognized for many centuries. It is certainly now generally recognized in England and other parts of the British Dominions. If that is so, there is in this case evidence that the prisoner's signature was found in the place which was broken into, and was found under such circumstances that it could only have been impressed at the time when the crime was committed. It is impossible under those circumstances to say there was no evidence to go to the jury." As quoted in 43 L.R.A.,N.S., 1207, annotation.

It was established that Utah and Turman were together at Silverton on the evening of the 19th and when they arrived at Grant's home on the morning of the 20th, and their story to Grant was that they had been together all of the intervening period; so the jury was justified in concluding that, where Utah was, Turman was also.

The murder charge was predicated on Rem.Rev.Stat. § 2392, and the information charged that Turman and Utah had, '* * * while engaged in the commission of or attempt to commit the crimes of rape, larceny or robbery, or in the withdrawal from the scene of such crimes or attempted crimes, unlawfully and feloniously * * *' killed Jo Ann Dewey, which, under the statute, constitutes murder in the first degree. The details of events after the kidnapping until Jo Ann Dewey was killed and her body thrown into the Wind river are unknown, but her clothing and purse have never been found (at least so far as the record discloses), and the inference that she had been robbed, raped, and killed by the same men who had seized her on the streets of Vancouver seems inescapable to us. State v. Craemer, 12 Wash. 217, 40 P. 944; State v. Gates, 28 Wash. 689, 69 P. 385; State v. Whitfield, 129 Wash. 134, 224 P. 559; State v. Bolen, 142 Wash. 653, 254 P. 445; State v. Cerciello, 86 N.J.L. 309, 90 A. 1112, 52 L.R.A.,N.S., 1110; People v. Jennings, 252 Ill. 534, 96 N.E. 1077, 43 L.R.A., N.S., 1206; People v. Roach, 215 N.Y. 592, 109 N.E. 618, Ann.Cas.1917A, 410; Garcia v. State, 26 Ariz. 597, 229 P. 103; State v. Kuhl, 42 Nev. 185, 175 P. 190, 3 A.L.R. 1694.

Nor does the fact that no one can say with certainty whether the death occurred in Clark county, where the kidnapping occurred, or in Skamania county, where the body was found, present any bar to the prosecution for murder in Clark county. Our statute, Rem.Rev.Stat. § 2013, reads as follows: 'When a public offense has been committed partly in one county and partly in another, or the act or affects constituting or requisite to the consummation of the offense occur in two or more counties, the jurisdiction is in either county.' See, also, State v. Knutsen, 168 Wash. 633, 12 P.2d 923; State v. Ashe, 182 Wash. 598, 48 P.2d 213; State v. Moore, 189 Wash. 680, 66 P.2d 836; State v. Bogart, 21 Wash.2d 765, 153 P.2d 507.

In State v. Ashe, supra, we approved a trial in King county on an information charging, in one count, an abduction in King county and, in another count, the placing of the abducted girl in a house of prostitution in Pierce county, saying that the essential elements of the crimes charged were all part and parcel of the same transaction.

The trial court did not err in refusing to grant appellants' motion for a directed verdict of acquittal at the conclusion of the state's case.

The second assignment of error is that the same motion should have been granted when repeated after both sides had rested. It becomes necessary, therefore, to consider the evidence offered by the appellants.

The defense was an alibi. Testimony of witnesses other than Turman and Utah placed them in a motion picture theater in Portland as late as 9:00 or 9:30 p. m. Sunday, March 19th. Their own testimony was that they left the theater after midnight and that, due to car trouble, they did not cross the interstate bridge from Oregon to Washington until 1:30 or 2:00 a. m. Monday, March 20th.

They explained that they did not return to their mother's home at Green Mountain, as they had intended, because they saw cars in proximity thereto which they thought were cars used by law enforcement officers, and therefore kept on going until they arrived at Grant's home at about 3:30 a. m. They then decided to drive back past their mother's to see if the cars they had noticed were still there, and for that purpose they took a light-colored Pontiac, leaving the Buick at Grant's. When they drove past their mother's...