State v. Coffelt

• Decision Date: 01 April 1949
• Docket Number: 30621.
• Citation: State v. Coffelt, 33 Wn.2d 106, 204 P.2d 521 (Wash. 1949)
• Parties: STATE v. COFFELT.
• Court: Washington Supreme Court

204 P.2d 521

33 Wn.2d 106

STATE v. COFFELT.

No. 30621.

Supreme Court of Washington, En Banc.

April 1, 1949

Wesley Coffelt was convicted of third-degree assaults, and he appeals.

Reversed as to two counts of the information, and affirmed as to third count.

MALLERY STEINERT, and ROBINSON, JJ., dissenting in part.

Appeal from Superior Court, Clallam County; Ralph Smythe, judge.

W. F Phillips, of Port Angeles, and Henry Clay Agnew, of Seattle for appellant.

Howard V. Doherty and Dana E. Harper, both of Port Angeles, for respondent.

SIMPSON Justice.

The prosecuting attorney of Clallam county, by information filed in the superior court, charged the appellant with the commission of crimes. The first three counts charged assault in the second degree upon three minor children, 'with intent to commit a felony with or on the person of said female, the said Wesley Coffelt then and there forcibly placing his hands and arms on and around the person of the said _____.' The fourth count in the information charged the crime of kidnapping. Appellant was found guilty of third degree assault on each of the first three counts, and not guilty of kidnapping.

On appeal, appellant assigns as error on the part of the trial court, (1) in denying the challenge to the sufficiency of the evidence; (2) in denying the motion for new trial; and (3) in the giving of instructions Nos. 3 and 9.

In brief, the evidence produced at the trial, which the jury were entitled to believe, was: One girl (count I), aged thirteen years, was in her home washing dishes when appellant appeared to inquire about two old cars which were in the yard. Ascertaining that the girl was alone, he grabbed her wrist, asked her if she wanted to make a couple of 'bucks,' and when she told him to let her go or she would scream and started screaming, he hit her and left. A neighbor heard the girl scream, ran to the house, and found her crying and hysterical.

Count II. The prosecuting witness named in this count was ten years of age. She testified that, November 23, 1947, while she was returning home from Sunday School, appellant offered her a ride in his car. The girl refused the invitation. Appellant then parked his car on a private roadway between the main road and her home, and, when she came along, said he wanted to show her something, pulled her down a side path, put his coat on the ground, and told her to sit on it. When she refused, he put his hand over her mouth and told her he would hurt her if she made a noise.

Count III. The girl mentioned in count III was twelve years of age. Appellant got her in his car with the promise that he would take her to school. Instead of taking her to school, he turned off the school road onto a side road. The little girl attempted to get out of the car, but was restrained by appellant. When she opened the door, he slammed it on her foot. However, she managed to leave and ran to the home of her sister who lived a short distance away.

Our legislature has defined second and third degree assault, as follows:

'Every person who, under circumstances not amounting to assault in the first degree * * * (6) Shall assault another with intent to commit a felony * * * shall be guilty of assault in the second degree.' Rem.Rev.Stat. § 2414.

'Every person who shall commit an assault or an assault and battery not amounting to assault in either the first or second degrees, shall be guilty of assault in the third degree'. Rem.Rev.Stat. § 2415.

In State v. Rush, 14 Wash.2d 138, 127 P.2d 411, 412, we held:

'We are committed to the rule that an assault is an attempt, with unlawful force, to inflict bodily injury upon another accompanied with the apparent present ability to give effect to the attempt if not prevented. Within this definition one would be guilty of assault if he raised his hand in anger, with an apparent purpose to strike and sufficiently near to enable the purpose to be carried into effect.'

It is perfectly clear that the evidence produced at the trial, measured by the above rule, was sufficient to prove third degree assault. There can be no doubt but that appellant committed the assaults with the possible intent of committing more serious crimes.

Appellant presses upon us the error of the trial court in giving instruction No. 3:

'In order to find the defendant guilty of assault in the Second Degree in each or any of the charges in the Information in this case, it is necessary that you shall find from the evidence beyond a reasonable doubt in each such charge or count, the following essential elements of that offense.

'1. In Count I, involving _____:

'(a) That the defendant, Wesley Coffelt, did assault the said _____.

'(b) That such assault was made with intent to commit a felony, towit: to take indecent liberties with or on the person of said _____.

'(c) That the said _____ is a female under the age of fifteen years.

'(d) That said assault occurred within three years last past.

'(e) That the said assault occurred in Clallam County, State of Washington.

'You are instructed that the Information likewise charges the defendant with having committed the crime of Assault in the Second Degree in two other counts: Counts II and III refer respectively to an alleged assault committed on _____ on the 23rd day of November, 1947, and on one _____ on the 11th day of December, 1947.

'As to Count III, the State has failed to adduce any evidence to support the charge of assault in the Second Degree. Therefore as to this count you will determine from the evidence only whether the defendant is guilty, beyond a reasonable doubt of the crime of assault in the third degree, on _____ on the 11th day of December, 1947.

'In order to convict the defendant as charged in reference to _____ [girl named in count II] you must find each and all of the matters set forth in sub-paragraphs (a) to (e) inclusive.'

As to each of the counts in this case, the prosecuting witness fixed the date exactly, and as to each of the counts appellant called numerous witnesses to prove that he was not at the place indicated in the evidence produced by the state.

It is the position of counsel for appellant that the portion of the instruction, lettered (d), which states that, other facts being proven, the jury may convict him if the act had been committed within a three-year period preceding the filing of the information, was improper in view of the definite testimony which sought to establish an alibi.

We decided, in State v. Severns, 13 Wash.2d 542, 125 P.2d 659, 667:

'It may be admitted that it is sufficient, in the absence of the defense of an alibi, to charge and prove that the act was committed on or about a certain date, and within three years next preceding the filing of the information, but when the...