State v. Willis

409 P.2d 669, 67 Wash. 2d 681, 1966 Wash. LEXIS 838

• Court: Washington Supreme Court
• Decided: January 6, 1966
• Docket: 37215
• Status: Published

Opinions

Ott, J.

— Roy Allen Willis, alias Lance Miller, alias Allen Kendall, admitted he shot and killed Helen M. Finnie in her apartment at approximately 4:30 a. m. on Sunday, October 28, 1962.

At the trial before a jury, his sole defense was that the homicide was the result of an accident which occurred as he pulled an unlicensed pistol from his pocket, upon arising from a bed on which he had been lying. The pistol then discharged, the bullet striking Helen Finnie almost exactly in the center of her forehead.

The jury returned a verdict of guilty of murder in the second degree. From the judgment and sentence, Roy Allen Willis has appealed.

Relative to the appellant’s defense of an accidental homicide, the court instructed the jury as follows:

As used in the information in said cause and these instructions, “willfully, unlawfully and feloniously” means intentionally and purposely, but not accidentally, and without and beyond the authority of law. Instruction No. 4.

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. Instruction No. 5.

When a defendant claims that he killed another by accident or misfortune, the burden is upon the defendant to prove that the homicide was done by accident.

In sustaining such burden of proof, it is not necessary for a defendant to prove this to you beyond a reasonable doubt, nor by a preponderance of the evidence. The defendant sustains this burden of proof and is entitled to a verdict of acquittal if from a consideration of all the evidence in the case you have a reasonable doubt as to whether the killing was done by accident or misfortune. Instruction No. 6.

Every killing of a human being is presumed in law to be without excuse.

Any matter of excuse that may exist for such killing, if such killing you find to be a fact, is a matter of defense. The state is not required to prove affirmatively that no excuse existed.

When the defendant claims that his killing of another is excused, the burden is upon the defendant to prove that the killing was excusable. Instruction No. 12.

An “accident” is an event happening without the occurrence of the will of the person by whose agency it was caused. It is an event that takes place without one’s foresight or expectation.

An “accident” is not present when a deliberate act is performed, unless some additional, unexpected, independent and unforeseen happening occurs.

“Negligence” is an unintentional breach of a legal duty causing damage reasonably foreseeable without which breach the damage would not have occurred. Instruction No. 16.

The appellant concedes that these instructions fairly and clearly presented to the jury the law applicable to his defense of an accidental homicide. The appellant assigns error to the court’s instruction No. 17 which was as follows:

You are instructed that the law presumes that every person intends the natural and probable consequences of his acts. Intent, therefore, may be shown by the consequences of the act and the circumstances surrounding the commission of the act.

Appellant’s primary contention is that the first sentence instructed the jury that the law presumes that every person intends the natural and probable consequences of his acts, which sentence negated his defense of an accidental killing.

When this sentence is taken out of context and quoted as a complete instruction, it could conceivably have misled the jury. When the questioned sentence is read in conjunction with the next sentence in the instruction, the meaning of the word “intends” is fully explained as follows: “Intent, therefore, may be shown by the consequences of the act and the circumstances surrounding the commission of the act.”

Intent to kill is seldom admitted by an accused. Intent, in nearly every case, can be established only by the presumption which flows from the circumstances surrounding the act.

What were the circumstances surrounding the commission of this act that tended to establish intent, and to which instruction No. 17 related?

The undisputed evidence of the state in this regard established:

(1) The appellant had returned to Helen M. Finnie’s apartment about 2 a. m. from having wined and dined another girl friend. He removed the trousers he had worn all evening, and put on a pair which had a pistol in one of the pockets. He then lay down on the bed, knowing the loaded pistol was in his pocket, and awaited the arrival of Helen Finnie.

(2) When she arrived and had partially disrobed, she entered her bedroom and was killed by the appellant. The muzzle of the death weapon was so close to the center of Helen Finnie’s forehead that, when the gun was fired, a powder burn more than two inches in diameter resulted.

(3) After the murder, instead of calling the police or summoning help in the apartment house, which would have been consistent with an accidental killing, the conduct of the appellant, as shown by further “circumstances surrounding the commission of the act,” was as follows:

(a) He stole the money from his victim’s purse and from her dresser.

(b) He mopped the blood of his victim from the floor.

(c) He removed his fingerprints from everything he had touched.

(d) He wrapped her body in a blanket, and covered her head with towels to keep the blood from dripping in the hallway as he carried the body to his car and placed it on the back seat.

(e) After he had driven several blocks to an unoccupied parking lot, he removed the corpse from the back seat and put it in the trunk.

(f) Near Mount Vernon, he left the main highway and drove some seven miles to a deep ravine near a river, then carried the body and deposited it where it would not readily be found.

(g) He then drove to Calgary, Canada, where he disposed of his bloodstained shoes, shirt, and trousers, and from there drove to Regina and Balgona, Canada, where he stayed for several days, during which time he buried the pistol and disposed of the remainder of the bullets.

(h) He cut the bloodstained upholstery out of his automobile, and removed the bloodstained floor covering from the trunk.

(i) He was apprehended in Canada, using an assumed name.

(j) In his confession, he stated he thought he could “beat the rap” by his escape, disposition of the body, and obliterating the evidence of his guilt.

The jury believed that the factual incidents and circumstances narrated above were inconsistent with any theory of an accidental killing, but, instead, established an intent to kill, as explained in instruction No. 17, and returned a verdict of guilty of murder in the second degree.

Proof of the circumstances surrounding the commission of an act is proper to establish intent on the part of the accused, and has been recognized as the law in Washington for more than 70 years. State v. Payne, 10 Wash. 545, 39 Pac. 157 (1895). It is also the law in the other 49 states of the union.

Each instruction must be considered in the light of all of the instructions given. State v. Stafford, 44 Wn.2d 353, 355, 267 P.2d 699 (1954); State v. Refsnes, 14 Wn.2d 569, 572, 128 P.2d 773 (1942). It is not possible to include all of the legal issues and definitions in a single instruction. It is presumed that a jury reads and follows the court’s instructions and considers them as a composite unit. State v. Costello, 59 Wn.2d 325, 332, 367 P.2d 816 (1962), and case cited.

We cannot assume that the jury disregarded instructions Nos. 4, 5, 6, 12, and 16, and considered only those instructions which related to the proof necessary to establish evidence of guilt.

When the questioned sentence in instruction No. 17 is not taken out of context, but is read in conjunction with the explanatory sentence, “Intent, therefore, may be .shown by the consequences of the act and the circumstances surrounding the commission of the act,” the jury was not misled.

Applying these well established rules to the questioned instruction, we find no merit in appellant’s first assignment of error.

Appellant next assigns error to the court’s instruction No. 14 which was as follows:

You are instructed that under the laws of the State of Washington no person shall carry a pistol in any vehicle, or concealed on or about his person, except in his place of abode or place of business, without a license therefor.

You are further instructed that in the trial of a person who has been charged with a crime of violence, the fact that the defendant was armed with a pistol and had no license to carry same shall be prima facie evidence of his intention to commit such crime of violence.

“Prima facie evidence” means evidence which may be accepted for proof of a particular fact. Such evidence even if not refuted by the defendant, should be given just such weight as it seems to you to merit.

This instruction is predicated upon the following statutes:

No person shall carry a pistol in any vehicle unless it is unloaded or carry a pistol concealed on his person, except in his place of abode or fixed place of business, without a license therefor as hereinafter provided. RCW 9.41.050.

In the trial of a person for committing or attempting to commit a crime of violence, the fact that he was armed with a pistol and had no license to carry the same shall be prima facie evidence of his intention to commit said crime of violence. RCW 9.41.030.

The appellant states that “The instruction [No. 14] is a correct statement of the basic law of this state,” but contends that the evidence established that appellant came within the exception provided in RCW 9.41.050 because, in the one night and part of another that he had been a guest in Helen Finnie’s apartment, coupled with his assertion that she had invited him to stay for an additional three days (until the end of the month), the premises became “his place of abode.”

Whether, as appellant contends, he had established that Helen Finnie’s apartment was “his place of abode” was a question of fact to be resolved by the jury. In this regard, Miss Margaret Conklin testified that she was the roommate of Helen Finnie during the time in question, and that, as late as the afternoon of October 27, 1962, the day before the homicide, she saw no indication that a man had moved into the apartment. Further, the appellant testified that he resided in Canada, where he had a common-law wife and three children.

There was ample evidence from which the jury could have concluded that the appellant’s presence in the apartment was insufficient to establish it as his abode. Under these circumstances, instruction No. 14 was properly given.

Appellant’s third assignment of error is that the trial judge twice commented on the evidence, which denied him a fair trial. This assignment relates to colloquies among the deputy prosecuting attorney, counsel for the appellant, and the court. In the instances cited, the court, in overruling an objection, merely stated its reason for the ruling. The court’s statements were not comments on the evidence; hence, did not violate the constitutional prohibition. State v. Ingle, 64 Wn.2d 491, 499, 392 P.2d 442 (1964); State v. Jenkins, 19 Wn.2d 181, 190, 142 P.2d 263 (1943), and case cited; State v. Adamo, 128 Wash. 419, 424, 223 Pac. 9 (1924), and cases cited; State v. Surry, 23 Wash. 655, 660, 63 Pac. 557 (1900).

Further, in connection with the alleged comments, the jury is presumed to have followed the court’s instruction No. 24, which was as follows:

Under the Constitution and laws of this State, the Court is prohibited from commenting upon the facts in this case or upon the credibility of any witness who has testified before you. The Court has not intentionally commented upon the facts in this case or upon the credibility of any witness who has testified before you, but if it has seemed to you that during the course of the trial, or in the giving of these instructions, the Court has said or done anything that would appear to be commenting upon the facts or upon the credibility of any witness, it is your duty to entirely disregard the same, and determine the facts solely from the evidence that has been admitted in the case.

Appellant’s fourth assignment of error is predicated upon alleged prejudice resulting from the following statement made by Detective-sergeant Roberts, a Canadian officer, who arrested the appellant in Canada:

Q. When he was ultimately taken into custody was it on a State of Washington warrant, because of a State of Washington warrant? A. No, sir. I charged him with a Canadian offense.

A motion for mistrial was made and argued in the absence of the jury. The officer stated that, at the time of the arrest, appellant was also wanted in Canada for the offense of forgery and uttering a forged instrument, which charge was formally filed on the same afternoon, and that his statement was innocently and inadvertently made.

The court, relying upon State v. Goebel, 36 Wn.2d 367, 218 P.2d 300 (1950), ruled that the statement was not prejudicial. The court then inquired of appellant’s counsel whether he desired the court to instruct the jury to disregard the witness’ statement relative to the Canadian offense. The appellant chose not to have such an instruction given. Thereafter, the appellant took the stand in his own defense and, upon direct examination, was asked the following question:

Q. Now, you were arrested by Sgt. Roberts on the basis of the charge here in Seattle, is that correct? A. When he arrested me he said that I was under arrest for murder, that I was wanted in Seattle for murder; that’s correct.

The appellant also admitted that he had previously been convicted of two felonies. Under these facts, the inadvertent statement made by the officer did not prejudice the appellant.

Finally, appellant contends that the words “intentional and voluntary” should have been included in the first sentence of instruction No. 17.

The words “intentional and voluntary” preceding the word “acts,” in the first sentence of instruction No. 17, would do nothing more than to present to the jury an amplified instruction. We have recently held that, although the addition of amplifying words to a questioned instruction might make it more perfect, this fact alone does not make the unamplified instruction erroneous or prejudicial. Dole v. Goebel, ante p. 337, 407 P.2d 807 (1965).

In the instant case, 26 instructions containing more than 3,600 words were given by the court. Many instances could undoubtedly be noted where descriptive words would have amplified, improved, and made these instructions more perfect. However, the framers of the constitution, in their wisdom, did not require that criminal trials be judicially perfect, but guaranteed a fair trial, measured by reasonable standards. State v. Ingle, supra, at 499; United States ex rel. Weber v. Ragen, 176 F.2d 579, 586 (1949).

The appellant’s theory of an accidental killing was fully and properly presented to the jury by the instructions. The instructions relative to accidental killing, and appellant’s testimony which alone supported this theory, were weighed and considered by the jury. By the verdict, the jury found that appellant did not establish that the killing was accidental.

The appellant in all respects had a fair trial, free of prejudicial error. The judgment and sentence is affirmed.

Rosellini, C. J., Hill, Weaver, Hunter, Hamilton, and Hale, JJ., concur.