State v. Donofrio
| Decision Date | 02 December 1926 |
| Docket Number | 20175. |
| Citation | 250 P. 951,141 Wash. 132 |
| Parties | STATE v. DONOFRIO. |
| Court | Washington Supreme Court |
Department 2.
Appeal from Superior Court, Pierce County; Chapman, Judge.
Dewey Donofrio was convicted of assault in second degree, and he appeals. Reversed and remanded, with directions.
S. A Gagleardi, of Tacoma, for appellant.
J. W Selden, John E. Belcher, and Robert B. Abel, all of Tacoma for the State.
The defendant, Donofrio, was charged by information filed in the superior court for Pierce county with the crime of assault in the second degree, as follows:
'That the said Dewey Donofrio, in the county of Pierce in the state of Washington, on or about the 26th day of May, 1925, then and there being unlawfully and feloniously and under circumstances not amounting to assault in the first degree, did willfully assault Elsie Engdahl with a weapon or instrument likely to produce bodily harm, the exact nature or character of said instrument being unknown to the prosecuting attorney other than an iron instrument being then and there held in the hands of said Dewey Donofrio, and that the said Dewey Donofrio did then and there strike the said Elsie Engdahl in the face with said instrument in such a manner as to produce bodily harm.'
His trial in that court resulted in a verdict of a jury finding him guilty of assault in the second degree, upon which judgment of imprisonment was accordingly rendered against him. From his conviction so had, he has appealed to this court.
Contention is made in behalf of appellant that the evidence does not support the verdict and judgment rendered against him, and that the trial court should have so decided as a matter of law; the evidence having been timely challenged by appropriate motions in that behalf. A careful review of the evidence convinces us that we would not be warranted in disturbing the judgment upon this ground.
It is next contended in behalf of appellant that the information 'does not state facts sufficient to charge a crime against this defendant,' and that the trial court erred in refusing to sustain such challenge to the sufficiency of the information timely made by demurrer and motion. The argument is that the charge that appellant 'did willfully assault Elsie Engdahl' is insufficient, in that it does not follow the language of the statute defining the crime, which is, 'willfully assault another.' Subdivision 4, § 2414, Rem. Comp. Stat. It is insisted that the use in the information of the name 'Elsie Engdahl' as a designation of the one assaulted does not certainly designate another person, since that might be the name or designation of a domestic animal alleged to have been assaulted. In section 2055, Rem. Comp. Stat., the requisites of an information touching its charging language is prescribed as:
'A statement of the acts constituting the offense, in ordinary and concise language, without repetition, and in such manner as to enable a person of common understanding to know what is intended.'
It seems plain to us that a person of common understanding would, from the language used in this information, know that the name 'Elsie Engdahl' was intended to be used as designating 'another' person. We conclude that the charge is sufficiently specific in this particular.
It is further contended, in behalf of appellant, that the trial court erred to his prejudice in not submitting to the jury the question of his guilt of assault in the third degree as well as the question of his guilt of assault in the second degree which was alone submitted to the jury. The three degrees of assault defined by our criminal statutes, referring to the sections of Remington's Compiled Statutes, in so far as we need here notice them, are as follows:
The punishment prescribed for the commission of a gross misdemeanor is 'imprisonment in the county jail for not more than one year, or by a fine of not more than one thousand dollars, or by both.' Section 2267, Rem. Comp. Stat.
It is plain, we think, that this charge of assault in the second degree includes a charge of assault in the third degree. This, as we understand counsel for the prosecution, is conceded; but they argue that the evidence precludes the possibility of appellant being guilty of assault in the third degree; that is, that the evidence necessarily calls for the conclusion that he is guilty of assault in the second degree or not guilty at all. It is true the court has often held that, in order to convict one of a lesser degree of a charged crime, or to call for the submission to the jury of a lesser degree of a charged crime, the evidence must be such as to warrant such conviction. Counsel for the prosecution cite, as showing this view of the law as being repeatedly entertained by this court, the following: State v. Kruger, 60 Wash. 542, 111 P. 769; State v. McConaghy, 84 Wash. 168, 146 P. 396; State v. Reynolds, 94 Wash. 270, 162 P. 358; State v. Gottstein, 111 Wash. 600, 191 P. 766; State v. Shaffer, 120 Wash. 345, 207 P. 229. In each of those cases the evidence conclusively showed the commission of the higher degree of the crime charged or that no crime at all was committed; and hence it was held proper in each of those cases for the court not to submit to the jury the question of whether or not the defendant was guilty of the lower degree. On the other hand, this court has repeatedly held that, where the evidence is such as to warrant the jury in believing the accused guilty only of a lower degree of the offense with which he is charged, it is the duty of the court to submit to the jury the question of the guilt or innocence of the accused of the lower degree, as well as the question of his guilt or innocence of the higher degree. State v. Dolan, 17 Wash. 499, 50 P. 472; State v. Young, 22 Wash. 273, 60 P. 650; State v. Dengel, 24 Wash. 49, 63 P. 1104; State v. Dale, 110 Wash. 181, 188 P. 473; State v. Olsen, 135 Wash. 240, 237 P. 502.
We now inquire as to whether or not there was evidence in this case warranting the jury in finding appellant guilty only of assault in the third degree. The prosecuting witness, Miss Engdahl, was the only person present at...
To continue reading
Request your trial
-
State v. Fernandez-Medina
...support an inference that only the lesser crime was committed. In fact, they are separate concepts. Bower also cites State v. Donofrio, 141 Wash. 132, 250 P. 951 (1926). This case is inapplicable because it was not a lesser included case. Rather, it was an inferior degree case which does re......
-
State v. Hunter
... ... supports the majority view, and holds squarely against the ... minority opinion, on the second and last above-stated ... question, as an examination of that case will disclose. Later ... Washington cases approving and following the Dolan case, on ... that point, are: State v. Donofrio, 141 Wash. 132, ... 250 P. 951; State v. Dale, 110 Wash. 181, 188 P ... 473; State v. Dengel, 24 Wash. 49, 63 P. 1104; ... State v. Young, 22 Wash. 273, 60 P. 650 ... Upon ... the authority of the Rogers, Dunlap and Foyte cases, ... supra, and the Dolan case and other cases ... ...
-
State v. Bower
...that only the lesser offense was committed. RCW 10.61.006; State v. Bishop, 90 Wash.2d 185, 580 P.2d 259 (1978); State v. Donofrio, 141 Wash. 132, 250 P. 951 (1926); State v. Livengood, 14 Wash.App. 203, 540 P.2d 480 Malicious mischief, RCW 9A.48.070-.090, does not satisfy the first conditi......
-
State v. Rodriguez, 17199-2-I
...at 270, 703 P.2d 1070; State v. Putnam, 31 Wash.App. 156, 163, 639 P.2d 858, review denied, 97 Wash.2d 1018 (1982); State v. Donofrio, 141 Wash. 132, 250 P. 951 (1926). Such an approach is also consistent with the underlying purpose of the factual requirement, which is to prevent verdicts b......