State v. Hiatt , 187 Wash. 226 ( 1936 )

From the decision of the majority and the excusatory and commendatory reasons leading thereto, I am compelled to vigorously dissent as to the discharge of appellant Marinoff. This decision invades the province of the jury more palpably than any I have known recently.

As stated in the forepart of the majority opinion, "The jury found that Marinoff was responsible for the employment and arming of the guards." As to this, there was competent, credible and ample evidence.

Rem. Rev. Stat., § 2260 [P.C. § 8695], reads:

"Every person concerned in the commission of a felony, gross misdemeanor or misdemeanor, whether he directly commits the act constituting the offense, or aids or abets in its commission, and whether present or absent; and every person who directly or indirectly counsels, encourages, hires, commands, induces or otherwise procures another to commit a felony, gross misdemeanor or misdemeanor, is a principal, and shall be proceeded against and punished as such. The fact that the person aided, abetted, counseled, encouraged, hired, commanded, induced or procured, could not or did not entertain a criminal intent, shall not be a defense to any person aiding, abetting, counseling, encouraging, hiring, commanding, inducing or procuring him."

Under our statute, it is now the settled law in this state that intent to cause the death of another is not an element in the crime of manslaughter. State v. Hopkins, 147 Wash. 198,265 P. 481, 59 A.L.R. 688.

Appellants were convicted of the least form of homicide. Whenever a homicide has been proven beyond a reasonable doubt, it is presumed to be murder in the second degree, and the burden is upon the accused to reduce it to manslaughter, or justify it.State v. Turpin, 158 Wash. 103, 290 P. 824.

The testimony recited by the majority that Marinoff was the instigator and was therefore an accessory to the killing, cannot be questioned now. The jury must also have believed that Hiatt actually employed the other men, obtained the guns, or part of them, the gas-bombs, and that the gun that actually did the killing came from Marinoff's desk. I agree with the trial judge that the instigator of such a crime as the jury found Marinoff to be guilty of is far more guilty than the man who did the shooting. It is a travesty on justice to convict the tool of the instigator and let the instigator go scot free.

I concur in the result as to appellant Hiatt, because there was error in the instruction as to the law of self-defense. However, both appellant Hiatt and appellant Marinoff should be obliged to undergo a new trial upon the same issues.

For the foregoing reasons, I dissent.

MILLARD, C.J., concurs with HOLCOMB, J.