State v. Kruger

• Decision Date: 22 November 1910
• Citation: 111 P. 769,60 Wash. 542
• Parties: STATE v. KRUGER.
• Court: Washington Supreme Court

111 P. 769

60 Wash. 542

STATE v. KRUGER.

Supreme Court of Washington

November 22, 1910

Department 2. Appeal from Superior Court, King County; J. T. Ronald Judge.

Arthur Kruger was convicted of assault in the third degree, and he appeals. Reversed and remanded, with directions to discharge accused.

Crawford E. White and F. D. Couden, for appellant.

George F. Vanderveer, W. H. White, and John F. Murphy, for the State.

CHADWICK, J.

Appellant was charged with the crime of assault in the second degree. The charging part of the indictment is as follows: 'He the said Arthur Kruger, on the 16th day of January, A. D 1910, in the county of King, state of Washington, aforesaid did willfully, unlawfully, and feloniously assault one Alma Langstrom, with intent then and there to commit the crime of rape.' The testimony of the prosecuting witness, if believed, shows a consummated rape. Appellant's evidence tends to prove an alibi. The complainant also testified that on two or three occasions appellant had robbed her of money. This evidence was introduced and limited by the court to the question of identification of the appellant; the rape having occurred, if at all, at about midnight on January 16th, and in an open field. The court submitted to the jury as an included crime assault in the third degree, and of this defendant was found guilty. Section 162, c. 249, Laws 1909, defines an assault in the second degree, in so far as it is pertinent to our present inquiry, to be an assault with an intent to commit a felony. Assault in the third degree is defined as follows: 'Every person who shall commit an assault, or an assault and battery not amounting to an assault in the first or second degree, shall be guilty of assault in the third degree.' Section 163.

It is unnecessary to detail the testimony. Suffice it to say that the evidence on the part of the state shows, as we have said the consummated crime of rape. There is no evidence whatever of an assault in the third degree. Appellant was guilty as charged, or he was not guilty. The evidence leaves no zone of speculation, or room for compromise. But it is contended that assault in the second degree includes assault in the third degree, and that the court was warranted in submitting that crime to the jury, and that the verdict was sustained. It is true that the greater includes the less, but the defendant is not guilty of either unless the testimony brings him within the definition of a crime. It was never the intent of the law to submit a possible verdict upon a so-called included crime because included in law. It must be included in fact, and by the facts of the particular case. The question is not a new one. In State v. Robinson, 12 Wash. 349, 41 P. 51, 902, it was held that the defendant, if guilty at all, was guilty of murder in the first degree, and that he could not be held upon conviction of manslaughter. The same principle is disclosed in State v. McPhail, 39 Wash. 199, 81 P. 683, where the court said: 'The position taken by counsel is that the trial court must submit every issue raised by the pleadings to the jury, regardless of the state of the testimony or the absence of all testimony. This contention finds no support in our Constitution or elsewhere, and cannot prevail.' In that case the rule, with sustaining authority, is quoted from 11 Ency. Pl. & Pr. p. 211, as follows: 'On a criminal prosecution, it is not necessary for the court of its own motion, or on request, to instruct as to the lower grades of crime involved, where there is no evidence on which to base such an...