State v. Wilson , 10 Wash. 402 ( 1894 )

The opinion of the court was delivered by

Hoyt, J.

Appellant was charged jointly with his father,, Charles Wilson, and his sister, Nellie Johnson, with the crime of murder in the first degree. A plea of not guilty was entered as to all of them, and they were tried together. Charles Wilson and Nellie Johnson were acquitted, and appellant was convicted of murder in the second degree, and from such conviction has prosecuted this appeal.

All of the errors assigned may be considered under four heads: 1, in admitting in evidence a certain letter from Johnson to Cowgill; 2, in denying the motion for a directed verdict for the defendants, at the close of the plaintiff’s case; 3, error in instructing the jury; and, 4, in denying the motion for a new trial.

As to the first assignment it is not easy to see how this letter could have any particular connection with the question at issue before the jury, but it was so connected with the appellant by his inquiries in regard thereto before the time of its receipt by Cowgill that it was not error as against him to allow it to go in evidence. But, whether it was or not, we should refuse to reverse the judgment on account of its admission in evidence, for the reason that we do not see how it could have influenced the verdict of the jury.

The second assignment presents a more difficult question, and, in order to decide it, it becomes necessary to determine the duty of a court in the trial of a cause to a jury, when a motion of this kind is .interposed. In our opinion it is its duty to deny the motion and allow the case to go to the jury unless there is such a want of necessary proofs as to make it clear that a verdict rendered thereon against the defendant would be set aside. It is not sufficient to authorize the granting of such a motion that it should appear that upon a careful review of plaintiff’s evidence it was not sufficient to support a verdict against the defendant, but it must further appear that such a result is so evident that the mind of the court would not hesitate in regard thereto. Such motion is interposed during the pendency of the action before the jury, and it is the duty of the court to pass upon the same without that careful research and consideration which it should give to the same question upon a motion for a new trial, and since, if it commits error in denying such a motion, it can be remedied upon a more careful consideration after verdict, it is its duty to deny it unless, from a superficial examination, it appears that the evidence is insufficient.

Investigating the proofs offered by the plaintiff in the light of the above suggestions we hold that the action of the court in denying the motion was proper. The evidence was not very strong, but there were some circumstances proven from which the jury would have been warranted in inferring the guilt of the accused. It was made to appear that the deceased person was the brother-in-law of the appellant, being the husband of Nellie Johnson, one of the defendants. It also appeared that there had been some interruption of the marital relations as between said defendant Nellie Johnson and her husband; that Charles Wilson, the other defendant, was seen with the deceased at about the time when, from the appearance of the body, he was killed; that the greeting between them at that time showed that there was more or less feeling on the part of said defendant against the deceased.

It further appeared that, at the time the body was exhumed, it was in a fair state of preservation, and in such a condition that one well acquainted with the deceased person would be likely to recognize it; that the appellant saw the body after it was exhumed, but made no sign to in any manner show that he recognized it. On the contrary his actions were such as to show that he clearly intended to have it understood that he had no knowledge whatever as to whose body it was. These and some other incriminating circumstances which were proven, would have authorized the jury to infer the guilt of the defendants.

The instruction, which is the foundation of the third assignment, was as to the weight to be given to the good character of the defendant. The instruction in that regard is not what it should have been, but we are of the opinion that the error could not have prejudiced the rights of the defendant, as the criticism which is made of it goes only to a case where there was positive proof as to the guilt of the defendant, and, except appellant’s own statement, the evidence was all circumstantial. But, however that may be, the verdict will not be disturbed if the proofs were of such a nature that the determination of the jury was clearly warranted.

It is claimed by the appellant that a new trial should have been granted upon two grounds : 1st, newly discovered evidence ; and, 2d, because there was not sufficient testimony to sustain the verdict.

As to the first, the facts set up in the affidavits were not o'f such materiality that a new trial should be granted on the ground of their discovery subsequent to the trial.

The other objection requires a consideration of the facts testified to by appellant when placed upon the stand in his own behalf, which, briefly stated, were as follows: That the deceased had come to their house for an interview with his wife ; that she was more or less frightened at his appearance, and desired him to go away ; that she was also desirous of obtaining from him a check for her trunk, which he had in his possession ; that he finally started to go away without giving her the check ; that the appellant went with him for the alleged purpose of obtaining from him the check and inducing him to go away and leave his sister alone; that at the time appellant was informed by his sister that the deceased carried a loaded revolver, and that he must ‘ ‘ look out,” or something to that effect; that he walked with deceased for the distance of about a mile, during which time they passed Charles Wilson, the father of the appellant, on his way home ; that during the walk he was trying to persuade deceased to give up the check and go away, and not try to have any further communication with his wife; that at times the deceased would appear to be reasonable and would say that he would go away, and at others he would threaten to go back, and do violence to his wife, or compel her to come with him ; that he finally gave to appellant the check for the trunk, and they continued on together until the deceased declined to go any further and turned around, saying that he would go back and kill his wife and then himself; that thereupon appellant picked up a stick and struck him a single blow which killed him; that he was much frightened and dragged the body into the woods, and went back to the house and told what he had done, and that afterwards he returned and buried the body.

This is the substance of the transaction as detailed by the appellant. The facts proven in connection with the autopsy of the body show that a blow of such violence had been received by the deceased as to crush in the entire back portion of the head and dislocate the neck. The statement of the appellant, interpreted in the light of all the circumstances, seems to us to warrant the verdict of the jury. His theory is that he was justified in what he did, upon the ground that it was in defense of his sister. But we are unable to hold that his sister was shown to be in such imminent danger as to justify the taking of life. The parties were more than a mile from the wife, and she was in the house with her father and mother, who had two guns available for her defense. These facts were all known to appellant.

Under these circumstances the right to interpose between the deceased and his wife by the use of such extreme measures as would necessarily cause death did not exist. If it had been in the immediate presence of the wife, and a revolver had been drawn, and threats made as stated, no doubt any reasonable means to prevent the carrying into effect of the threats would have been justifiable. Not only was the danger to the wife and sister remote on account of the facts above stated, but also for another reason. It appeared that the deceased had been in the habit of threatening his wife, whenever he lost his temper, to such an extent that such threats did not make it probable that she would be injured ; much less did it make the injury so imminent as to justify such extreme measures for her protection.

Beside, the fact that such a crushing blow was delivered upon the back of the head tends strongly to discredit the statement of the appellant as to the homicide. The weapon used must necessarily have been of such a nature that any one of ordinary prudence must have known that to strike a person upon the head with it was to cause death. It follows that its use was only justified under circumstances of the greatest peril to the appellant or to a member of his family. And, when we consider the interest which the appellant had in coloring his testimony to shield himself, it seems much more probable that the real facts were that if the walk was taken with, the deceased, as testified to by appellant, the deadly blow was deliberately struck while he was walking by the side of, or behind, the deceased.

It is no doubt true that, excepting so far as guilt was shown by other proofs, the story of the appellant must be taken together, as well those parts which tend in his favor as those tending to criminate him, but it does not follow from this that the whole story should not be construed in the light of all the surrounding circumstances as shown by the nature of the wound and the probable character of the weapon with which it was inflicted.

We think defendant’s own testimony showed that he was guilty at least of murder in the second degree, and that the verdict of the jury was abundantly sustained thereby.

Judgment and sentence will be affirmed.

Scott, J., concurs.