State v. Colwash

550 P.2d 57, 15 Wash. App. 530, 1976 Wash. App. LEXIS 1433
CourtCourt of Appeals of Washington
DecidedMay 25, 1976
Docket944-3
StatusPublished
Cited by16 cases

This text of 550 P.2d 57 (State v. Colwash) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Colwash, 550 P.2d 57, 15 Wash. App. 530, 1976 Wash. App. LEXIS 1433 (Wash. Ct. App. 1976).

Opinions

Green, J.

Defendant appeals from a judgment and sentence entered upon his conviction of murder in the second degree.

Error is assigned to the court’s: (1) denial of defendant’s motion to dismiss for want of jurisdiction; (2) giving and [531]*531refusing to give certain instructions, particularly those relating to manslaughter and intoxication; (3) admission of photographs depicting the scene of the crime; (4) ordering defendant to submit to a blood test and admitting the results thereof; and (5) submission of a special verdict as to whether defendant was armed with a deadly weapon at the time of the crime.

With respect to the jurisdictional challenge, the facts show that defendant is a full-blooded, enrolled member of the Yakima Indian Nation (as was the deceased), and that the crime occurred within the exterior boundaries of the Yakima Indian Reservation on deeded land occupied by the Wapato Hotel. Defendant concedes that RCW 37.12.010, Tonasket v. State, 84 Wn.2d 164, 525 P.2d 744 (1974), and Comenout v. Burdman, 84 Wn.2d 192, 525 P.2d 217 (1974) support the trial court’s denial of his motion to dismiss for want of jurisdiction. However, defendant argues that these cases were wrongly decided and should be reconsidered. Such a request should be addressed to the Supreme Court, inasmuch as this court, like the trial court, is bound by those decisions.

Next, defendant contends the court erred in refusing to give his proposed instructions relating to the lesser-included offense of manslaughter. The jury was instructed that the homicide was neither excusable (instruction No. 21) nor justifiable (instruction No. 20). They were further instructed that intoxication could be considered in determining the presence of intent (instruction No. 22);1 or stated another way, intoxication could negative the intent to kill. Such intent is an essential element in first- or second-degree murder. Defendant asserts the court should have instructed on manslaughter because (1) there was sufficient evidence to support it; and (2) the jury could [532]*532have found defendant was so intoxicated that he could not form the requisite intent to commit murder based upon the intoxication instruction. Had the jury found that the defendant was so intoxicated as to be incapable of forming the requisite intent, the killing would have been unintentional, i.e., manslaughter. It is defendant’s position that he was entitled to present this theory to the jury and that the refusal to give the manslaughter instruction deprived him of that right. Further, in light of the intoxication issue, there was evidence to support the instruction. Thus, defendant contends the court’s refusal to instruct on manslaughter was error. We agree.

Manslaughter is defined in RCW 9.48.060:

Any homicide other than, murder in the first degree, or murder in the second degree, and not being excusable or justifiable is manslaughter.

From the evidence, it is clear that defendant killed the victim by stabbing him with a knife. Under the instructions and the evidence, this killing was not excusable or justifiable. The giving of an intoxication instruction created for the jury a question as to whether defendant possessed the requisite premeditation and/or intent to kill required for murder. Consequently, the evidence compelled a jury conclusion that either (1) the homicide was intentional, i.e., murder in the first- or second-degree; or (2) unintentional, i.e., manslaughter. Without the manslaughter instruction, the jury was required to either find the defendant guilty of one of the degrees of murder or acquit him. It is unrealistic to believe that a jury would acquit the defendant under the facts presented. The refusal to give the manslaughter instruction disarmed the defendant of the theory that if he was guilty of any crime it was manslaughter, an unintentional killing, by reason of his intoxicated condition. Thus, it was error not to instruct on manslaughter and we are constrained to reverse and grant a new trial.

The dissent agrees with this conclusion, but refuses to join in this reversal because, in its view, the exceptions taken at trial were inadequate to preserve the error. The [533]*533State does not challenge the adequacy of defendant’s exceptions; whereas, singularly and on its own initiative, the dissent raises this question based on its assessment that to reverse a case on an error not articulated with unquestionable precision is unfair to the trial judge. As noted by the dissent, it is, of course, the well-established rule that a party must state the reasons for the exceptions to instructions, specifying the number, paragraph, and particular part in order to preserve the error. CrR 6.15 (c) ;2 State v. Gosby, 85 Wn.2d 758, 539 P.2d 680 (1975); Kjellman v. Richards, 82 Wn.2d 766, 514 P.2d 134 (1973). We find the exceptions adequate within CrR 6.15 (c) to apprise the trial court of the issues involved.

Defendant sought an instruction to the effect that if the jury found defendant to be so intoxicated that he could not form a necessary intent, he must be acquitted. This instruction was refused by the trial court. Defendant further proposed an instruction on manslaughter to allow the jury to deliberate on whether a crime was committed and whether the crime was manslaughter. This instruction was also refused. Defendant then took exception to the failure to give an instruction relating to specific intent, stating that such was necessary in order for the defendant to present his theory of the case. Defendant further proposed instructions to the effect that if the jury could not find the necessary elements for first- or second-degree murder, then they must determine whether the defendant is guilty of manslaughter, the lesser-included offense. In light of the intoxication instruction that was given, defendant’s exceptions, taken together, are adequate to apprise the trial court of the issues and to preserve the error. Cf. State v. Peterson, 73 Wn.2d 303, 438 P.2d 183 (1968).

Because our holding will require a new trial, we will consider certain other errors assigned on this appeal that may arise again.

[534]*534First, defendant assigns error to the giving of instruction No. 22 and the court’s refusal to give his proposed instruction No. 33 relating to voluntary intoxication. We find no error. Instruction No. 22 is phrased in virtually the same language as the instructions considered and approved in State v. Runnells, 64 Wn.2d 995, 390 P.2d 1003 (1964), and State v. Mello, 79 Wn.2d 279, 484 P.2d 910 (1971).

Second, error is assigned to the giving of instruction No. 9:

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State v. Colwash
550 P.2d 57 (Court of Appeals of Washington, 1976)

Cite This Page — Counsel Stack

Bluebook (online)
550 P.2d 57, 15 Wash. App. 530, 1976 Wash. App. LEXIS 1433, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-colwash-washctapp-1976.