State v. Hopkins , 147 Wash. 198 ( 1928 )

In the case of State v. Robinson, 12 Wn. 349, 41 P. 51,902, a prosecution under the aiding and abetting statute, this court laid down the rule:

"We think that § 1319 [Code Proc.], supra, contains but the usual provisions in force in all, or nearly all, of the states, and we have been cited to no case, nor have we found one in which a conviction for manslaughter has been sustained under circumstances similar to those disclosed by the record here. Theoffense of manslaughter from its legal character excludes thepossibility of an accessory before the fact as an element in its composition." (Citing cases).

This rule is inferentially approved in State v. McFadden,48 Wn. 259, 93 P. 414, 14 L.R.A. (N.S.) 1140. At the time the rule was announced in the above cases, manslaughter in this state was, generally speaking, manslaughter as defined at common law. But under our criminal code (Rem. Comp. Stat., §§ 2392 to 2395), as since adopted, where there is any intent or design there is now no element of manslaughter. State v. Palmer, 104 Wn. 396,176 P. 547; State v. Hoyer, 105 Wn. 160, 177 P. 683;State v. Sowders, 109 Wn. 10, 186 P. 260; State v. Gottstein, 111 Wn. 600,191 P. 766.

The doctrine announced in the above cases is that the killing of a human being in order to constitute manslaughter must be involuntary and unintentional. I am unable to understand how a person can be aided and abetted in the doing of an unintentional and involuntary act by another person who has no intent.

Our statute (Rem. Comp. Stat., § 2260), on aiding and abetting, set out in the majority opinion, has been construed by this court in State v. Peasley, 80 Wn. 99, 141 P. 316, where, after setting out the statute in full, the court said:

"Each of the words used in this statute upon which a criminal charge can be predicated signifies some form of overt act; the doing or saying of something either directly or indirectly that contributes to the criminal act; some form of demonstration that expresses affirmative action; and not mere approval or acquiescence, which is all that is implied in assent. To assent to an act implies neither contribution nor an expressed concurrence. It is merely a mental attitude which, however culpable from a moral standpoint, does not constitute a crime, since the law cannot reach opinion or sentiment however harmonious it may be with a criminal act. State v. Douglass,44 Kan. 618, 26 P. 476; White v. People, 81 Ill. 333; Plummerv. Commonwealth, 1 Bush (Ky.) 76; State v. Cox, 65 Mo. 29;True v. Commonwealth, 90 Ky. 651, 14 S.W. 684; Clem v. State,33 Ind. 418."

The acts of negligence set out in the information and charged against the principal, John Doe, are: First, that he was operating an automobile while intoxicated; second, at an unlawful rate of speed; and third, that he failed to pass to the right of an approaching car.

The only evidence found in the record to sustain the charge of drunkenness against John Doe, the driver of the car, is the following:

"Q. Now, may I ask, if before you left you saw anyone else standing there? A. There was a man standing alongside of the car there. Q. Which car did you see him standing alongside? A. The Studebaker. Q. Which side was he standing on? A. He was standing on the right hand side of that car. Q. Did you have an opportunity to ascertain whether he was intoxicated or not? A. Yes, he was. Q. What was his posture or position? A. Just standing leaning against the car like that (indicating). Q. Did he render any assistance while you were lifting the car? A. None."

There is no evidence in the record to show that this man who was drunk and who stood by the side of the Studebaker car after the collision was John Doe, the driver, nor is there any testimony whatever to show what, if any, connection he may have had with this accident; and there is certainly no presumption against appellant, rather all presumptions are in her favor. The only testimony in the case relative to the unlawful speed is the testimony of a state's witness who estimated the speed of the car for a distance of about two blocks prior to the time of the accident at about twenty or twenty-five miles an hour, the testimony being: "You say that the car was going about twenty or twenty-five miles an hour? A. Not to exceed that." The lawful rate of speed of a car at the place of this accident was thirty miles an hour. This testimony was given by a witness who followed the car which caused the accident, who testified that she was watching her own speedometer and was therefore in position to give correct testimony as to speed. Five or more of the state's witnesses, all who were asked concerning the subject, testified that the appellant, Christine Hopkins, was drunk at the time the accident happened. There is no testimony that she did or said anything concerning the way the car was being operated or driven, and I can conceive of no legal obligation resting upon her except that of remaining silent and quiescent, she being in the condition which all of the state's witnesses testified she was in.

I feel constrained to dissent from the majority opinion on two grounds: First, that the crime of manslaughter is such a crime that, from its very nature, one cannot aid and abet in the commission thereof; second, that there is not a scintilla of evidence in the record showing any overt act on the part of the appellant.

ASKREN, J., concurs with FRENCH, J.