State v. Wanrow

559 P.2d 548 (1977)

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Nature of the Case

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Facts

D's two children were staying at the home of Ms. Hooper. D's son was playing in the neighborhood and came back to Ms. Hooper's house and told her that a man tried to pull him off his bicycle and drag him into a house. Some months earlier, Ms. Hooper's 7-year-old daughter had developed a rash on her body which was diagnosed as venereal disease. Ms. Hooper had been unable to persuade her daughter to tell her who had molested her. Mr. Wesler appeared on the porch of the Hooper house and denied touching the child. At that moment, the Hooper girl, seeing Wesler at the door, indicated to her mother that Wesler was the man who had molested her. Joseph Fah, the landlord, saw Wesler as he was leaving and informed Hooper that Wesler had tried to molest a young boy who had earlier lived in the same house and that Wesler had previously been committed to the Eastern State Hospital for the mentally ill. They called the police, and Ms. Hooper requested that Wesler be arrested then and there, but the police stated, 'We can't, until Monday morning.' The landlord suggested that Ms. Hooper get a baseball bat located at the corner of the house and 'conk him over the head' should Wesler try to enter the house uninvited during the weekend. The policeman replied, 'Yes, but wait until he gets in the house.' Ms. Hooper called D and asked her to spend the night with her in the Hooper house. At that time, she related to D the facts we have previously set forth. D arrived with a pistol in her handbag. The two women determined that they were too afraid to stay alone and decided to ask some friends to come over for added protection. D's sister and brother-in-law arrived. The four adults did not go to bed that evening but remained awake talking and watching for any possible prowlers. There were eight young children in the house. D's brother in law, Chuck Michel, without the knowledge of the women in the house, went to Wesler's house, carrying a baseball bat. Michel accused Wesler of molesting little children. Mr. Wesler then suggested that they go over to the Hooper residence and get the whole thing straightened out. Another man, David Kelly, was also present, and together the three men went over to the Hooper house. Mr. Michel and Mr. Kelly remained outside while Wesler entered the residence. Wesler, a large man who was visibly intoxicated, entered the home and when told to leave declined to do so. A good deal of shouting and confusion then arose, and a young child awoke crying. Wesler then approached this child, stating, 'My what a cute little boy,' or words to that effect, and that the child's mother, Ms. Michel, stepped between Wesler and the child. By this time, Hooper was screaming for Wesler to get out. D, a 5-foot 4-inch woman who at the time had a broken leg and was using a crutch, testified that she then went to the front door to enlist the aid of Michel. D stated that she shouted for him and, upon turning around to reenter the living room, found Wesler standing directly behind her. She testified to being gravely startled by this situation and to having then shot Wesler in what amounted to a reflex action. The police were called. D engaged in a conversation with the police operator. Over objections, the tape was admitted into evidence. D was convicted of second-degree murder and first-degree assault. The Court of Appeals reversed and P appealed.