State v. Robinson , 12 Wash. 349 ( 1895 )

The opinion of the court was delivered by

Gordon, J.

Appellant was tried in the superior court of Snohomish county upon an information charging him with the crime of murder in the first degree, for the killing of George Schultz, on the 22d day of December, 1892. A verdict of manslaughter was returned by the jury, and a motion for a new trial having been overruled appellant was sentenced to imprisonment in the penitentiary for the term of eighteen years. The case comes to this court upon his appeal from the judgment of conviction.

The record discloses that upon the trial below no attempt was made by the state to show that appellant was present at the time and place of the killing. On the contrary, it is conceded that at the time the homicide was committed appellant was serving as a juror in the superior court of the county at the city of Snohomish, distant some ten or eleven miles from the place where the homicide was committed; and the proof upon the part of the state was confined to an attempt to show that appellant had conspired with James Robinson, George Robinson, John White and John Livingstone to commit the crime, and that the killing was done by George Robinson and John Livingstone in pursuance of such conspiracy, the theory of the state being that the appellant was an accessory before the fact.

Sec. 1189, Code Proc., provides:

“No distinction shall exist between an accessory before the fact and a principal, or between principals in the first and second degree, and all persons concerned in the commission of an offense, whether they directly counsel the act constituting the offense, or counsel, aid and abet in its commission, though not present, shall hereafter be indicted, tried, and punished as principals.”

It is contended by appellant’s counsel that the evidence was insufficient to justify the conviction of manslaughter, and we think this contention must be upheld. It was conceded by the learned counsel for the state, upon the argument of the cause in this court, that if the information had charged no higher offense than manslaughter the evidence introduced would be incompetent to establish such crime.' But he earnestly contends that inasmuch as the crime of murder in the first degree is charged in the information in which the lesser offense of manslaughter is necessarily included, and inasmuch as the evidence was competent in support of the charge of murder, it was within the province of 'the jury, under §1319, Code Proc., to find the defendant not guilty of the degree charged in the information and guilty of any degree inferior thereto. But with this contention we cannot agree. We think that § 1319, 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. The offense of manslaughter from its legal character excludes the possibility of an accessory before the fact as an element in its composition. Jones v. State, 13 Tex. 168 (62 Am. Dec. 550) Tex. Cr. App. 92; Bowman v. State, 20 S. W. 558; Boyd v. State, 17 Ga. 194. Conspiring with another to kill a human being necessarily involves malice, whereas manslaughter is the “ unlawful killing without malice,” and does not admit of preconcerted design. The only offense which the evidence in this case tended to establish was murder in either the first or second degree, and the verdict which found appellant guilty of manslaughter was farcical and “ contrary to law and the evidence.” It was the duty of the jury, if they entertained a reasonable doubt of the appellant’s guilt of the only crime which the evidence tended to prove, to acquit and “ not compromise with that doubt by finding him guilty of a lower grade of offense.” State v. Mahly, 68 Mo. 315.

The theory of manslaughter is unsupported by any evidence whatever, and such being the case it was improper to instruct the jury that they might find the appellant guilty of manslaughter. State v. Cole, 63 Iowa, 695 (17 N. W. 183); Dickerson v. State, 48 Wis. 288 (4 N. W. 321); State v. Cantieny, 34 Minn. 1 (24 N. W. 458); Foster v. People, 50 N. Y. 598.

In Boyd v. State supra, the court say:

“Here the pleadings, it is true, put in issue the crime of manslaughter; for the indictment being for murder put in issue not only that offense, but every lower grade of homicide also, just as though there were a separate count for each. But the evidence introduced going to the crime of murder only, all the minor grades of homicide, although contained in the true bill, were, nevertheless, withdrawn or dropped, for want of proof in the issue finally submitted to the-jury.”

Such we think is the present case. The e.vidence, while proper to be passed upon by a jury in connection with the charge of murder in the first degree, became legally incompetent when considered with reference to the charge of manslaughter, a charge which admits of no accessories before the fact.

The case of State v. Greer, 11 Wash. 244 (39 Pac. 874), does not support the position of counsel for the state. The question presented here was not involved in the decision of that case, and there is a marked distinction between the cases. The indictment in the case of State v. Greer was for murder in the first degree in administering poison to the deceased. The conviction was for a lesser degree. None of the evidence upon the trial was brought to this court by bill of exceptions or statement of facts, the contention being that under the indictment a conviction could only be had of murder in the first degree. In the absence of the evidence or any sufficient statement of the circumstances relied upon for a conviction in that case, this court was unable to say that circumstances might not exist which would justify a conviction under the indictment for homicide in one of the lesser degrees; as for instance, if the poison had been administered under circumstances amounting to criminal negligence, a conviction might properly follow for manslaughter. Here, however, the facts and circumstances relied upon for a conviction are not in dispute, and we think that the distinction between the cases is apparent.

The legal effect of the verdict in this case- acquits the defendant of the higher degrees of homicide, and having concluded that the evidence is insufficient to justify a conviction for manslaughter, the judgment will be reversed and the cause remanded with instructions to discharge the appellant.

Anders and Dunbar, JJ., concur.