State v. Utter

4 Wn. App. 137 (1971)

479 P.2d 946

THE STATE OF WASHINGTON, Respondent,

v.

CLAUDE GILBERT UTTER, Appellant.

No. 611-41091-1.

The Court of Appeals of Washington, Division One — Panel 1.

January 25, 1971.

Hohlbein, Vanderhoef, Sawyer & Hartman and Wesley G. Hohlbein, for appellant

(appointed counsel for appeal).

Christopher T. Bayley, Prosecuting Attorney, and Paul M. Acheson, Deputy, for respondent.

FARRIS, A.C.J.

Claude Gilbert Utter was charged by an information filed January 16, 1969, with the crime of

murder in the second degree. He was convicted by a jury of the crime of manslaughter. He

appeals from that conviction.

Appellant and the decedent, his son, were living together at the time of the latter’s death.

The son was seen to enter his father’s apartment and shortly after was heard to say, “Dad,

don’t”; Shortly thereafter he was seen stumbling in the hallway of the apartment building

where he collapsed, having been stabbed in the chest. He stated, “Dad stabbed me”; and

died before he could be moved or questioned further.

Mr. Utter entered the armed services in December of 1942 and was honorably discharged

in October of 1946. He was a combat infantryman. As a result of his service, he was

awarded a 60 per cent disability pension.

Appellant testified that on the date of his son’s death he began drinking during the morning

hours. He was at the liquor store at 9 a.m. and purchased a quart of Thunderbird wine and

a quart of port wine and drank the bottle of port wine with the exception of two drinks. Mr.

Utter went for more liquor around noon. At that time he purchased 2 quarts of whiskey and

4 quarts of wine. Upon his return from the liquor store, he and another resident of the

apartment “sat around drinking whiskey out of water glasses.”; Appellant remembers

drinking with his friend and the next thing he remembers was being in jail subsequent to the

death of his son. He has no recollection of any intervening events.

Appellant introduced evidence on “conditioned response”; during the trial. Conditioned

response was defined by Dr. Jarvis, a psychiatrist, as “an act or a pattern of activity

occurring so rapidly, so uniformly as to be automatic in response to a certain stimulus.”; Mr.

Utter testified that as a result of his jungle warfare training and experiences in World War II,

he had on two occasions in the 1950’s reacted violently towards people approaching him

unexpectedly from the rear.

The trial court ruled that conditioned response was not a defense in Washington and

instructed the jury to disregard all evidence introduced on this subject. ....

The major issue presented on appeal is whether it was error for the trial court to instruct the

jury to disregard the evidence on conditioned response. ....

There are two components of every crime. One is objective — the actus reus; the other

subjective — the mens rea. The actus reus is the culpable act itself, the mens rea is the

criminal intent with which one performs the criminal act. However, the mens rea does not

encompass the entire mental process of one accused of a crime. There is a certain minimal

mental element required in order to establish the actus reus itself. This is the element of

volition. See Sim, The Involuntary Actus Reus, 25 Modern L. Rev. 741 (1962).

In the present case, the appellant was charged with second-degree murder and found guilty

of manslaughter. The actus reus of both is the same — homicide. Thus, in order to establish

either, the fact of homicide must first be established.

Appellant contends that his evidence was presented for the purpose of determining whether

in fact a homicide had been committed. He argues that his evidence, if believed, establishes

that no “act” was committed within the definition of homicide, RCW 9.48.010 (since

amended by Laws of 1970, Ex. Ses., ch. 49, § 1, p. 333):

Homicide is the killing of a human being by the act, procurement or omission of another and

is either (1) murder, (2) manslaughter, (3) excusable homicide or (4) justifiable homicide.

What is the meaning of the word “act” as used in this statute?

It is sometimes said that no crime has been committed unless the harmful result was

brought about by a "voluntary act." Analysis of such a statement will disclose, however, that as so used the phrase "voluntary act" means no more than the mere word "act." An act

must be a willed movement or the omission of a possible and legally-required performance.

This is essential to the actus reus rather than to the mens rea. "A spasm is not an act." R.

Perkins, Criminal Law 660 (1957).

[A]n `act’ involves an exercise of the will. It signifies something done voluntarily. It

necessarily implies intention. We find these statements abundantly sustained by the text-

writers and decisions of our courts. Heiman v. Pan American Life Ins. Co., 183 La. 1045,

1061, 165 So. 195 (1935). See also Stokes v. Carlson, 362 Mo. 93, 240 S.W.2d 132

(1951); Brown v. Standard Casket Mfg. Co., 234 Ala. 512, 175 So. 358 (1937); Duncan v.

Landis, 106 F. 839 (3d Cir.1901).

Thus, to invert the statement of Perkins, the word "act" technically means a "voluntary

act." See State v. Peterson, 73 Wn.2d 303, 438 P.2d 183 (1968).

It is the appellant’s contention that any of the alleged "acts" he committed were not those which involved mental processes, but rather were learned physical reactions to external stimuli which operated automatically on his autonomic nervous system…. Appellant

contends that a person in an automatistic or unconscious state is incapable of committing a

culpable act — in this case, a homicidal act.…

There is authority to support the proposition of the appellant.

Where, at the time of the killing, the slayer was clearly unconscious thereof, such

unconsciousness will constitute a defense, as in the case of a homicide committed by one

in a state of somnambulism, or while delirious from disease. (Footnotes omitted.) O. Warren

and B. Bilas, 1 Warren on Homicide § 61 (perm. ed. 1938).

If a person is in fact unconscious at the time he commits an act which would otherwise be

criminal, he is not responsible therefore. The absence of consciousness not only precludes

the existence of any specific mental state, but also excludes the possibility of a voluntary act

without which there can be no criminal liability. (Footnotes omitted.) …

An "act" committed while one is unconscious is in reality no act at all. It is merely a physical

event or occurrence for which there can be no criminal liability. However, unconsciousness

does not, in all cases, provide a defense to a crime. When the state of unconsciousness is

voluntarily induced through the use and consumption of alcohol or drugs, then that state of

unconsciousness does not attain the stature of a complete defense. Thus, in a case such as

the present one where there is evidence that the accused has consumed alcohol or drugs,

the trial court should give a cautionary instruction with respect to voluntarily induced

unconsciousness.

The issue of whether or not the appellant was in an unconscious or automatistic state at the

time he allegedly committed the criminal acts charged is a question of fact. Appellant's

theory of the case should have been presented to the jury if there was substantial evidence

in the record to support it.

… It is the function and province of the jury to weigh evidence and determine credibility of

witnesses and decide disputed questions of fact. State v. Dietrich, 75 Wn.2d 676, 453 P.2d

654 (1969). However, a court should not submit to the jury an issue of fact unless there is

substantial evidence in the record to support it. State v. Brooks, 73 Wn.2d 653, 440 P.2d

199 (1968); State v. Collins, 66 Wn.2d 71, 400 P.2d 793 (1965).

We find that the evidence presented was insufficient to present the issue of defendant's

unconscious or automatistic state at the time of the act to the jury. There is no evidence,

circumstantial or otherwise from which the jury could determine or reasonably infer what

happened in the room at the time of the stabbing; the jury could only speculate on the

existence of the triggering stimulus.

Affirmed.