State v. Shirley , 60 Wash. 2d 277 ( 1962 )

Foster, J.

The sentence of death in this first-degree murder case must be reversed because of an erroneous instruction, which is:

“It is not necessary for an appreciable period of time to elapse for premeditation to exist. ...”

This was error because it obliterates the distinction between murder in the first and second degrees. The first territorial legislature of 1854 defined murder in the first degree as follows:

“Every person who shall purposely, and of deliberate and premeditated malice, or in the perpetration, or attempt to perpetrate, any rape, arson, robbery or burglary, or by administering poison, or causing the same to be done, kill another, every such person shall be deemed guilty of murder in the first degree . . . ” Laws of 1854, Wash. Terr., § 12, p. 78.

Murder in the second degree was defined as follows:

“Every person who shall purposely and maliciously, but without deliberation and premeditation, kill another, every such person shall be deemed guilty of murder in the second degree ...” Laws of 1854, Wash. Terr., § 13, p. 78.

Continuously since, the difference between murder in the first degree and murder in the second degree has been the presence or absence of deliberate and premeditated intent.

The present statutes had their origin in the criminal code of 1909, Laws of 1909, chapter 249, § 140, p. 930 (first-degree murder), and Laws of 1909, chapter 249, § 141, p. 930 (second-degree murder), and are now codified as RCW 9.48.030 and RCW 9.48.040, and, so far as material, are as follows:

“The killing of a human being, unless it is excusable or justifiable, is murder in the first degree when committed either—

“(1) With a premeditated design to effect the death of the person killed, or of another; or . . . ” RCW 9.48.030.

“The killing of a human being, unless it is excusable or justifiable, is murder in the second degree when—

“(1) Committed with a design to effect the death of the person killed or of another, but without premeditation; or ...” RCW 9.48.040.¹

Nearly seventy years ago, in State v. Rutten, 13 Wash. 203, 212, 43 Pac. 30 (1895), this court held that it was reversible error to instruct in a trial on the charge of first degree murder that “There need not be any appreciable space of time between the formation of intention to kill and killing.” Judge Dunbar stated the court’s reasons as follows:

“It seems to us that the language used wipes out the distinction made in the statute between murder in the first and second degree. While no great amount of time necessarily intervenes between the intention to kill and the act of killing, yet, under our statute there must be time enough to deliberate, and no deliberation can be instantaneous; in fact, the idea of deliberation is the distinguishing idea between murder in the first and second degree, and the instructions of the court which we have quoted give exactly that which would be necessary to define murder in the second degree, because the intention to kill must be in the mind of the slayer, and he must do it purposely and maliciously; consequently the act of killing must be preceded by the purpose to kill, and it must be a malicious purpose, and that purpose may be formed instantaneously, or as expressed by the learned court below, ‘as instantaneous as the successive thoughts of the mind,’ and under the old definition of murder, viz., the unlawful killing of any subject whatsoever through malice aforethought, that would be a proper instruction in regard to murder; but our statute has changed the law in this respect, and has introduced the element of deliberation, and deliberation means to weigh in the mind, to consider the reasons for and against, and consider maturely, to reflect upon, — and while it may be difficult to determine just how short a time it will require for the mind to deliberate, yet, if any effect is to be given to the statute which makes a difference between murder in the first and second degree, the language used by the learned court is too broad.”

That decision has been reaffirmed (State v. Straub, 16 Wash. 111, 47 Pac. 227; State v. Moody, 18 Wash. 165, 51 Pac. 356; and State v. Arata, 56 Wash. 185, 105 Pac. 227; State v. Ross, 56 Wn. (2d) 344, 353 P. (2d) 885), but never overruled.

The court, in the instruction now before us, followed the language reported in the temporary publication of our opinion in State v. Ross, 156 Wash. Dec. 361, 368 (June 23, 1960), which stated:

“It is not necessary for an appreciable period of time to elapse for premeditation to exist. State v. Miller, 164 Wash. 441, 2 P. (2d) 738. ...”

In the official publication of the opinion (56 Wn. (2d) 344, 351, 353 P. (2d) 885), however, the sentence was corrected to read as follows:

“It is necessary for an appreciable period of time to elapse for premeditation to exist. State v. Horner, 21 Wn. (2d) 278, 150 P. (2d) 690. ...”

In fairness to the conscientious and painstaking trial judge, it must be pointed out that volume 56 of the second series of the Washington Reports was not available when this case was tried.

Thus it is that the trial court made a mistake which eliminated the distinction between first and second degree murder, for which reason the judgment must be reversed and a new trial ordered.

Donworth, Weaver, Rosellini, Hunter, and Hamilton, JJ., concur.

1 They were based upon the New York Criminal Code. State v. Palmer, 104 Wash. 396, 176 Pac. 547.