# State v. Willis > Washington Supreme Court · January 6, 1966 · 67 Wash. 2d 681 URL: https://www.frixlaw.com/law-library/cases/9548220 ## Case - **Full name:** The State of Washington, Respondent, v. Roy Allen Willis, Appellant - **Court:** Washington Supreme Court - **Decided:** January 6, 1966 - **Citations:** 67 Wash. 2d 681; 409 P.2d 669; 1966 Wash. LEXIS 838 - **Precedential status:** Published - **Opinion:** Dissent by Finley - **Judges:** Finley, Ott - **Cited by:** 28 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9548220 ## How later opinions describe it (automated extraction) - finding inadvertent reference not prejudicial when defendant admits subsequently to prior convictions ## Opinion text Finley, J. (dissenting) — The majority opinion inventories, marshals and, it seems to me, emphasizes somewhat gratuitously certain inflammatory facts and circumstances relating to resolution of the ultimate question of the guilt of the accused, Roy Allen Willis. Certain errors allegedly occurring in the trial of the accused relate to instructions and to the possibility of improper comment by the trial judge. These matters seem to be crucial in my judgment. They relate not to the question of the guilt or innocence of the accused, but to the fundamental issue of whether he was accorded a fair trial. Our function in the instant case as an appellate court is not quite that of the trial jury; i.e., deciding upon the ultimate question of the guilt or innocence of the accused. Rather, it is to carefully isolate and evaluate the errors urged on appeal which allegedly prevented the accused from having a fair trial. The facts, as emphasized and urged by defense counsel, paint, it seems to me, at least a somewhat less bleak and black picture of the accused than is indicated by the majority. With this perspective somewhat in mind, coupled with the firm belief that two of the errors assigned are too significant to be treated as nonprejudicial to the accused, I am persuaded to disagree with the majority, and I shall commence with a review of the facts as I see them. The defendant, Roy Allen Willis, is appealing a conviction of second degree murder. Some of the significant circumstances in this case relate back in time. Willis was born in Ontario, Canada, in 1932. Life’s realities started for him in an orphanage and continued with sojourns of various lengths in a series of temporary homes until he was 16 years of age. Then, so to speak, he struck out on his own as his own man. But the resulting overtones or implications were inconsistent with Horatio Alger theses and nomenclature. The conduct or activities of Roy Allen Willis, as if “acting, out” *691 frustration and hostility, were negative rather than socially affirmative. In very short order he was involved in the toils of the law, charged and convicted of “joy-riding,” and for this he spent 10 months in confinement. Within 6 months after his release, he was convicted of burglary, and then spent 20 months in confinement. This conviction around 1951, albeit, was his last until the present instance. An attempt by Willis to join the Canadian armed forces was abortive because of his criminal record. He came to the United States, adopted an alias, and worked as a magazine salesman for approximately 2 years before the immigration authorities deported him. He tried to return to the United States legally, but again, his criminal record blocked this. Once again, he did enter the United States illegally, and this time he was deported with threats of imprisonment if he returned. Despite these warnings, Willis moved to Alaska in December 1960, and settled in Anchorage. In early October 1962, Willis made a fateful trip to Seattle. He stayed first at the Waldorf Hotel, and then with a friend by the name of Danny Anamura. Soon after his arrival in Seattle, Willis renewed an acquaintanceship with Helen Finnie (now deceased), whom he had met 2 years before. At her suggestion he moved into her apartment on Friday, October 26,1962, intending to remain there until the prepaid rent period expired. On Saturday, October 27,1962, Willis drove to Snoqualmie Pass to do some sketching. Apparently, art was his chief interest in life. He returned to the apartment about 9:30 p.m. He then called a Miss Laney and arranged to meet her and some other friends from his “magazine selling” days at the Moore Hotel. After the bar closed, he and Miss Laney went to two other night clubs in Seattle, and eventually returned to the Moore Hotel. Willis made a dinner engagement with Miss Laney for the next day, and then returned to Helen Finnie’s apartment. According to the defendant’s testimony, he changed his trousers at the apartment ostensively because of a drink that Miss Laney had spilled on them. In the pocket of the trousers into which he changed was an unlicensed pistol he had brought back *692 with him from Alaska. Without removing the pistol from the pocket of his trousers, Willis lay down on the bed, where he fell asleep. Meanwhile, according to the testimony of defendant Willis, Miss Finnie (a barmaid at the Cabellero Tavern in Seattle) had secured the night off to accompany two other barmaids of the establishment and three Seattle police officers for a night on the town, terminating with Miss Finnie’s arrival at her apartment between 3:40 and 4 a. m. Miss Finnie had started to prepare for bed when Willis awoke. As they were talking, Willis sat up on the bed, and the pistol in his pants pocket bit into his side. As he extracted the gun from his pocket it discharged, the bullet hitting Miss Finnie in the head. Willis testified that he “panicked” when he considered his record and the circumstances. He wrapped the body in a blanket and towels, packed his own clothes, wiped his fingerprints from the apartment, and left. He abandoned the body near Sedro Woolley, and fled to Canada. The body was later discovered, still clad in underwear and decedent’s watch on her arm. There was no indication of physical abuse other than the single bullet wound. Willis voluntarily waived an extradition hearing in Canada, even though he had prevailed in one habeas corpus hearing. He stated that he wanted to return to Washington to clear himself, and he freely related the fatal incident to the Seattle police. Much of the foregoing fact pattern respecting the activities of Willis and the demise of Helen Finnie comes from the uncorroborated testimony of defendant Willis. However, I have reconstructed the pattern of events asserted by the defendant, such as it is, to illustrate the effect that alleged trial errors could have had on the defense presented to the jury by the defendant in his unsuccessful attempt to avoid conviction of the crime charged. He relied completely upon an effort to convince the jury that the homicide was accidental, and he claims that a major blow against this effort was precipitated when the trial court gave instruction No. 17: *693 You are instructed that the law presumes that every person intends the natural and probable consequences of his acts. Intent, therefore, may be shown by the consequences of the act and the circumstances'surrounding the commission of the act. The appellant-defendant attacks this instruction on the ground that it assumes the very fact which he was trying to refute; namely, the instruction implicity assumes that the “act” of shooting the gun was in fact an intentional and voluntary act. I agree with the defendant. As a leading treatise states: The presumption that the defendant intended the natural and probable consequences of his acts applies only when the defendant has voluntarily and intentionally committed the acts for the consequences of which he is later prosecuted. 1 Wharton, Criminal Evidence § 131 (12th ed. 1955). This distinction was also recognized by another state supreme court: For whatever else may be said about instructions concerning presumptions of intent, it is at once obvious that the “presumption” stated does not arise except it be predicated upon an intentional act. State v. Martin, 260 S.W.2d 536, 538 (Mo. 1953). Although I believe that under the particular circumstances of this case error was committed by the trial judge in presenting instruction No. 17 to the jury, I also think that the essence of the instruction, if qualified as indicated hereinafter, could have been presented to the jury. The point is this: There are two possible inferences which can be derived from the discharge of a pistol. While it is reasonable to infer that the discharge was the effect of an intentional act, it may be inferred also that the act causing the gun to discharge, or the discharge of the gun itself, was accidental. The latter inference may seem less likely, but it is unfair to the defendant to give an instruction to the jury which implicitly assumes that the discharge resulted from an intentional act. I note that because of the circumstances of this case the state was unable to produce evidence that *694 the firing of the gun resulted from an intentional act. Of course, the circumstantial evidence supported an inference that the firing was the product of an intentional act, but this inference was contradicted by the defendant’s direct testimony that the gun discharged accidentally. With the evidence and the inferences therefrom in such conflict, the proper use of instruction No. 17 called for language that would inform the jury that the presumption applies only if they believe, beyond a reasonable doubt of course, that the act of discharging the gun was an intentional or voluntary act. It is also possible to rectify the instruction by modifying the word “act” therein, making the instruction read: You are instructed that the law presumes that every person intends the natural and probable consequences of his intentional and voluntary acts. Intent, therefore, may be shown by the consequences of the act and the circumstances surrounding the commission of the act. (Added words are in italics.) An instruction so worded would not defeat the use of the presumption in the state’s case if the jury should believe the act was intentional, and the instruction would properly remind the jury that they must decide whether the act was intentional or accidental. Thus, the state would have the full benefit of the inferences derivable from the circumstantial evidence, and at the same time defendant’s defense would not be buried under an implicit assumption hidden in the instructions. I note that the state already had the benefit of instruction No. 10: The court instructs you that where a homicide is proved beyond a reasonable doubt, the presumption is that it is murder in the second degree, and if the defendant desires to reduce the degree to manslaughter, the burden is on him to produce evidence of those facts or circumstances which call for such reduction. This instruction has been part of our law since State v. Payne, 10 Wash. 545, 553 , 39 Pac. 157 (1895), and the state has cited many cases to uphold this instruction. Several of *695 these cases contain statements that approve the use of a presumption that a person intends the natural and probable consequences of his acts. The jury must be informed that the word “act” refers to intentional acts. There is little doubt in my mind that the error in instruction No. 17, discussed above, was potentially quite prejudicial. Funches v. State, 148 So.2d 710, 711 (Miss. 1963). A jury receives instructions on the law from the trial judge. These are intended and designed to guide and circumscribe the deliberations of the jury. Obviously, they do perform that function. The court should not speculate at apparently a very great risk to the defendant on the question of whether the jurors in this case were aware of the fact they could quite properly interpret the word “acts” in instruction No. 17 to refer only to intentional acts. Since this particular error bears strongly on the propriety of the defense afforded to the appellant-defendant, I believe the only way to avoid prejudice and to afford fair treatment to the accused requires granting a new trial. Error is also assigned to instruction No. 14, which stated: You are instructed that under the laws of the State of Washington no person shall carry a pistol in any vehicle, or concealed on or about his person, except in his place of abode or place of business, without a license therefor. You are further instructed that in the trial of a person who has been charged with a crime of violence, the fact that the defendant was armed with a pistol and had no license to carry same shall be prima facie evidence of his intention to commit such crime of violence. “Prima facie evidence” means evidence which may be accepted for proof of a particular fact. Such evidence even if not refuted by the defendant, should be given just such weight as it seems to you to merit. Instruction No. 14 apparently was keyed directly to the following two statutory provisions: RCW 9.41.050: No person shall carry a pistol in any vehicle unless it is unloaded or carry a pistol concealed on his person, except in his place of abode or fixed place of business, without a license therefor as hereinafter provided. *696 RCW 9.41.030: Being armed prima facie evidence of intent. In the trial of a person for committing or attempting to commit a crime of violence, the fact that he was armed with a pistol and had no license to carry the same shall be prima facie evidence of his intention to commit said crime of violence. Two other statutory provisions are somewhat pertinent, and read: RCW 9.41.070: Alien’s license to carry firearms. It shall be unlawful for any person who is not a citizen of the United States, or who has not declared his intention to become a citizen of the United States, to carry or have in his possession at any time any shotgun, rifle, or other firearm, without first having obtained a license from the director of licenses, and such license is not to be issued by the director of licenses except upon the certificate of the consul domiciled in the state and representing the country of such alien, that he is a responsible person and upon the payment for the license of the sum of fifteen dollars. Nothing in this section shall be construed to allow aliens to hunt or fish in this state without first having obtained a regular hunting or fishing license. Any person violating the provisions of this section shall be guilty of a misdemeanor. RCW 9.41.040: Certain persons forbidden to possess arms. No person who has been convicted in this state or elsewhere of a crime of violence, shall own a pistol or have one in his possession or under his control. The latter two statutes certainly prohibit and make it illegal for an alien or a person convicted of a crime of violence to carry a pistol. Obviously, such a person could not be lawfully licensed to carry a pistol. But the particular error urged by appellant in this appeal raises a factual question under RCW 9.41.050 as to whether Helen Finnie’s apartment can be said to have been appellant’s place of abode. As to this the evidence in the record is dubious and conflicting. The issue was a factual one for the jury. I think it was properly submitted under instruction No. 14, set out above, and find no merit in this assignment of error. The state argues that the instructions were not prejudicial to the defendant as all were read and considered as a *697 whole. I cannot agree. It appears to me that the combination of instruction No. 10 (the presumption of second degree murder) with the faulty instruction No. 17 (the unconditional presumption that a person intends the natural consequences of his acts) produced an unfair trial. This is to me quite convincing, considering the effect of the presumption on the minds of jurors faced with a defense of accident that depended entirely upon the defendant’s owm testimony. The defendant also alleges that error occurred when the trial judge made two comments that indicated disbelief in the defendant’s testimony, thus again damaging the veracity of his defense of accident in the eyes of the jury. The pertinent portion of the record reads as follows: A. (by the defendant) With the Court’s indulgence, your Honor, the prosecutor is trying to twist a phrase of mine. . . . Q. (by the prosecutor) Mr. Miller [Willis], no matter what you think of my attempt to twist your testimony — Mr. Savage (Defense Attorney): I object to the speech that Mr. LaRose is making before — every time he asks a question. He can ask a question -without making remarks like that very easily. The Court: Well, the witness kind of invited it, Mr. Savage. Mr. Savage: With all due respect to the Court, I would object to that. The Court: Well, you may object to it. But he accused the prosecutor of twisting it, and he was saying despite that— Mr. Savage: Could I take up a matter with the Court now? The Court: No, you may not. You may do it at recess time. Mr. Savage: May I make a record at recess time on this matter? The Court: Yes. And, at a slightly later point, the following transpired: Q. (By Mr. LaRose) Mr. Miller [Willis], let’s move for a moment to the extradition proceedings. Do you know when the first fugitive warrant was obtained for you? A. No, Sir. Q. Could it have been between the 10th and 15th of November, 1962, during that period when you were arrested? Mr. Savage: Objection, your Honor. If he doesn’t know he is guessing. He just testified he doesn’t know. The Court: Well, he must have some knowledge, I presume, of the proceedings, and counsel may inquire to find out what his knowledge is. Mr. Savage: May I — I am sorry, your Honor. I would like — The Court: You may make your objection. Mr. Savage: I *698 most respectfully object to the Court’s comment. The Court: I didn’t make a comment, Mr. Savage. The testimony is brought out that he attended the extradition hearing continuously. There is no comment on the evidence. Counsel is entitled to find out some information about it. It is convincing to me that these comments were damaging to the defendant’s case. The court has very recently fully explored the constitutional prohibition respecting trial judge comments before a jury. State v. Bogner, 62 Wn.2d 247 , 382 P.2d 254 (1963). In that case we quoted the early law of this state: “ . . . It is not the quantum of any particular comment, but all comment whatever, that is inhibited by the constitution; and, therefore, courts should be extremely careful to confine their instructions solely to declaring the law. All remarks and observations as to the facts before the jury are positively prohibited, and if any such are made, the judgment will be reversed unless the appellate court can see that the accused was in no wise prejudiced thereby.” State v. Bogner, supra, at 252 , quoting State v. Walters, 7 Wash. 246 , 34 Pac. 938 (1893). As already indicated, it is difficult and too speculative for me to say that the “accused was in no wise prejudiced” by the above quoted remarks of the trial court, and this seems an additional ground for granting a new trial. Finally, the defendant also claims error in the trial court’s refusal to grant a mistrial when a Canadian officer inadvertently testified to unrelated Canadian charges against the defendant. For the reasons indicated, I think that a new trial should be ordered. Donworth, J., concurs with Finley, J. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9548220. Public record. Not legal advice.