Main, Mitchell, Blake, Beals, and Geraghty, JJ., concur.
The appellants Marinoff and Hiatt were charged, together with Oscar Wold, J. L. Hanford, and Theo Fergeson, with the crime of murder in the first degree. Marinoff was charged as an accessory before the fact and the others as direct participants. A trial was had to a jury. At the close of the state's case the prosecutor acquiesced in a directed verdict of not guilty as to the defendant Wold. The case as to the other defendants was submitted to the jury resulting in a verdict finding each of the four guilty of manslaughter. The defendant Fergeson, who admittedly fired the fatal shot, was given a jail sentence of one year with credit thereon for time spent in jail awaiting trial. The defendant Hanford was sentenced to one year in jail and the sentence was suspended. The defendants Marinoff and Hiatt were each given a sentence
of twenty years in the penitentiary and each has appealed.
A somewhat general outline of the facts must precede a discussion of such of the errors assigned as appear to be vital. On May 24, 1935, the date charged in the information, Peter Marinoff was and for some time had been the president and general manager of the Northwest Brewing Company, a Washington corporation, having a plant in the city of Tacoma and at that time, and for some days, at least, preceding, there had existed a controversy between the International Brotherhood of Teamsters, Chauffeurs, Stablemen and Helpers of America on the one hand and the Brewery Workers Union on the other. The teamsters union had declared a strike against the Northwest Brewing Company and was engaged in picketing the Tacoma plant of that company. Armed guards had been provided for the protection of the brewing plant and the protection of the trucks of the brewing company while engaged in making deliveries. The defendants Hiatt, Wold, Hanford and Fergeson were such guards so employed. There is a controversy as to whether the guards were employed and paid by the Brewery Workers Union or by Marinoff as the managing officer of the brewing company. We shall assume, for present purposes, that the jury found that Marinoff was responsible for the employment and arming of the guards. In the late afternoon of May 24, 1935, the day of the shooting, it became necessary or advisable to take one of the trucks of the brewing company from the brewing plant to a garage, two or three blocks away, to have a tire changed. At this time, as all during the strike, the teamsters union was closely picketing the brewery and causing each truck leaving the plant to be followed. When, on this occasion, the truck left the
brewery for repairs, appellant Hiatt, in an automobile, closely followed the truck to the garage where the work was to be done. Upon arrival there members of the teamsters union, probably pickets and observers, gathered around Mr. Hiatt and endeavored to persuade him to give up his employment as a guard, promising him safe conduct back to Seattle if he would do so, which Hiatt refused to do. While Hiatt was engaged in controversy with these pickets, the cap was removed from the gasoline tank on his automobile and sugar was put into the tank without his knowledge. Upon returning to the brewery with the truck, some one, unidentified, telephoned the brewery and gave information of the fact that sugar had been placed in the gasoline tank of the car driven by Mr. Hiatt. Mr. Hiatt, accompanied by Hanford and Fergeson, then drove his automobile to another garage for the purpose of having the sugar removed from the gasoline tank. When they left the brewery for this purpose they were closely followed by a car driven by Usatalo, the man who was later killed, accompanied by four others. While the gasoline tank was being removed from Hiatt's car and flushed out, a proceeding which took some time, Mr. Usatalo remained in his car stationed across the street, with his companions, awaiting movement upon the part of Mr. Hiatt and his car. When Hiatt and his companions left the garage in the Hiatt car, the Usatalo car, occupied as before, closely followed them up through the business section of the city of Tacoma and beyond. Finally Hiatt stopped his car and thereupon the Usatalo car was stopped right behind it. Hiatt and his two companions, defendants Hanford and Fergeson, stepped out of the car, went back to the Usatalo car, strenuously objected to being followed, and Hiatt then said to Usatalo and his companions
that if they did not cease to follow they would have their heads blown off, or words to that effect. Notwithstanding this threat, when the Hiatt car proceeded the Usatalo car continued to follow for a considerable distance until, by turning and zigzagging and turning off its lights, the Hiatt car finally eluded those who followed it. After escaping from the following car, the Hiatt car was driven to the residence of Mr. Wold, where he was picked up, according to previous directions, and being advised by Mr. Wold that another brewery guard was surrounded or 'treed' near the Milwaukee depot, Hiatt, with his four companions, proceeded in the car to his relief. On arrival at the place indicated they found no one surrounded or in trouble and then started back from the Milwaukee depot toward the brewery. As they were so proceeding the car driven by Usatalo again fell in behind them and continued to follow them as they proceeded. When the Hiatt car turned off of Pacific avenue on to East Twenty-Sixth street it was, according to the testimony of its occupants, struck by missiles, thrown by hand, by persons there assembled and the glass windows on the left hand side of the car were struck and broken. Wold was hit and cut by broken glass. Shots were then fired. The jury could well find that all of the shots fired came from the men in the Hiatt car. Hanford, who sat in the front seat of the Hiatt car beside Hiatt the driver, seems to admit that he fired a rifle at least once involuntarily and at random. There is some testimony to the effect that Hiatt stepped out of his car with a rifle and fired several shots at pedestrians moving on Pacific avenue, but there is nothing to indicate that he fired in the direction of the car driven by Usatalo or that he fired any shot at random.
Fergeson, armed with a 38 caliber revolver, seems to have fired two or three shots therefrom, perhaps at the moving pedestrians, but certainly in a direction away from the Usatalo car, and then to have turned and through the back window of the Hiatt car, the glass from which had been theretofore removed, extending his arm well out, he fired directly at the Usatalo car, which was some 60 to 80 feet distant. The ball from his revolver struck Usatalo squarely in the middle of the forehead and inflicted the wound from which he died. Following this shooting Hiatt turned his car around and sped away from the scene.
In order to support the theory that Marinoff was an accessory before the fact, four witnesses were produced who testified that on May 22, 1935, between 11 o'clock and noon, or about 60 hours before the killing, Marinoff was at the plant of the brewing company when a truck was being moved in or out which was immediately surrounded by a considerable gathering of pickets, or strikers, the number being estimated variously from 10 or 12 up to possibly 100. At that time, according to the testimony, Marinoff put his head out of his office window and shouted words to the effect that he would pay $500 to any one who would 'get' any one of the pickets there assembled, the offer being testified to in various terms such as 'I will pay $500 to the man that gets that man,' and, again, '$500 to throw that bomb,' '$500 for any of them guys' heads,' '$500 for any of those fellows,' 'I will give $500 for any of those guys,' at the same time pointing to all who were assembled about the truck in the street.
There is testimony to the effect that Fergeson or Hanford was present within hearing of such offers
armed with a tear gas bomb (possibly both were present); that Hiatt was present armed with a rifle and that two truck drivers were present, both being armed. Of course Marinoff and all those in the employ of the brewery, who were present, deny that any such offer, threat, or statement was made. There is testimony in the record sufficient to permit the jury to find that Marinoff was responsible for arming these guards, both with the rifles and revolvers as well as with the nondeadly tear gas bombs.
The errors upon which the appellants chiefly rely, and the ones which principally question the sufficiency of the evidence, are that the court erred in refusing to grant their motions for instructed verdicts of not guilty and, in any event, the court erred in submitting the crime of manslaughter to the jury.
These matters which require a review of the evidence as a whole can be discussed more or less together with a saving of space, but, perhaps, as an introduction to the discussion, the crime of manslaughter should be defined and the rule with reference to submitting the question of manslaughter to a jury as an included offense should be restated. In State v. Palmer, 104 Wash. 396, 176 P. 547, 548, this court said: 'No longer is the intentional killing upon sudden heat, or the intentional killing, no matter how provoked, classified as manslaughter. And as soon as it appears that the killing was with a design to effect death, the element of manslaughter disappears from the case. That grade of ...