State v. Ladiges
| Decision Date | 13 May 1965 |
| Docket Number | No. 37690,37690 |
| Citation | 66 Wn.2d 273,401 P.2d 977 |
| Court | Washington Supreme Court |
| Parties | The STATE of Washington, Respondent, v. Osmar LADIGES and Richard Ladiges, Appellants. |
Brown, Hovis, Cockrill & Roy, Yakima, and Edward P. Reed, White Salmon, for appellants.
Alf M. Jacobsen, Pros. Atty., Goldendale, for respondent.
*
The defendants are charged in consolidated actions with third degree assault, a gross misdemeanor.
This case has already travelled the most tortuous and circuitous routes conceivable. It commenced in one justice of the peace court, from which it was informally transferred to another. The second justice transferred it to a third, on the filing of an affidavit of prejudice and motion for change of venue. The third, by mistake, returned it to the second, who then turned it back to the first. The first justice proceeded to try the case in spite of affidavits of prejudice filed on the day of trial and in disregard of the fact that defendants' counsel did not arrive until the second witness for the state was testifying. The case had previously been reset for trial to afford defendants an opportunity to apply to the superior court for a writ of prohibition, but they not only failed to do this at that time, but neglected to institute an independent action subsequently.
The defendants were found guilty by a jury in justice court and immediately gave oral notice of appeal to the superior court, which dismissed the appeal on the grounds that it had not been perfected. The order of dismissal was then appealed to this court. State v. Ladiges, 63 Wash.2d 230, 386 P.2d 416. We reversed the judgment of dismissal for the reason that it was based on the new justice court rules, which we held could not be retroactive. The appeal, conforming to the old rules which were in effect at the time, was deemed timely and proper. The case was remanded to the superior court with instructions to reinstate the appeal.
The defendants were found guilty by a jury in the superior court and now, again, appeal to this court from the judgments and sentences imposed. The superior court refused to act on defendants' request that it review the justice court proceedings dealing with denial of change of venue. This motion was made at the commencement of trial in the superior court. Defendants assign as error the court's denial of their motion to review the justice court proceedings.
Although we cannot approve the strange and awkward meandering of this case through the justice courts, we feel that the defendants have not been denied any of the rights to which they were entitled up to this point.
The crime charged is a gross misdemeanor. The superior court and the three justice courts all had jurisdiction and the case could have been initially filed in any of them. The defendants were given time to invoke the coercive powers of the superior court by a writ of prohibition but they did not pursue this remedy. They appealed the justice court conviction and were granted a trial de novo in the superior court, after this court remanded with instructions to reinstate the appeal. They are now appealing from the superior court conviction and ask that the case be reinstated in the third justice court.
The appellants have now waived whatever right they might have had to change of venue in justice court. They had an independent action available in superior court to compel the justice court to proceed as required by law. Instead of following that course, they appealed to the superior court.
In the case of State v. Miller, 59 Wash.2d 27, 29, 365 P.2d 612, 613, we said:
The appellants' assignments of error Nos. 2, 3, 4 and 6 all pertain to instructions given or refused and relate to the same basic objection, so they will be treated together. There was testimony that the complaining witness, Arther Ladiges, was driving his tractor in the process of filling in an irrigation ditch for which his brother Osmar Ladiges had an easement, and further that Arthur had sicked his dog on the defendants, one of whom was attacked by the dog. There was also testimony that the complainant was attempting to hit the defendants with his tractor.
The court gave the following instruction:
'Instruction No. 3. You are instructed that the laws of the State of Washington provide as follows:
'You are instructed that an easement or right of way for an irrigation ditch is 'property' within the meaning of the statute.'
The court defined an assault and battery in instruction No. 4 and in instruction No. 5 and No. 6 set out the essential elements of the crime charged. The court did not give any instruction relating to appellants' theory that they were not guilty if the force used by them was reasonable under the circumstances, regardless of actual danger to their persons or property, if they reasonably believed they were about to be injured or that there was about to be a malicious trespass or interference with property in their possession.
The statute with which we are here concerned (RCW 9.11.040(3)), the pertinent portion of which was set out in the court's instruction No. 3, has been previously termed by us as '* * * somewhat ambiguous * * *' Peasley v. Puget Sound Tug & Barge Co., 13 Wash.2d 485, 507, 125 P.2d 681. As we pointed out in that case, the statute specifies certain...
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State v. Ng
...Ng contends that because it is erroneous to fail to inform the jury of the subjective component of self-defense, see State v. Ladiges, 66 Wash.2d 273, 401 P.2d 977 (1965); State v. Theroff, 95 Wash.2d 385, 622 P.2d 1240 (1980); it is likewise error not to explicitly inform the jury of the s......
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State v. Birdwell
...(1971), and the failure to do so, or the giving of otherwise incomplete instructions, constitutes reversible error. State v. Ladiges, 66 Wash.2d 273, 401 P.2d 977 (1965); Kiemele v. Bryan,3 Wash.App. 449, 476 P.2d 141 (1970). See State v. Rogers, 5 Wash.App. 347, 486 P.2d 1125 Among the ins......
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State v. Murray
...the position of the defendant when he testified to a man coming towards him with what he thought was a firearm. Cf. State v. Ladiges, 66 Wash.2d 273, 401 P.2d 977 (1965); State v. Lewis, 6 Wash.App. 38, 491 P.2d 1062 (1971). His defense was based almost entirely upon his own credibility. Wh......
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...there is a right of trial de novo on appeal. RCW 10.10.010; Seattle v. Buerkman, 67 Wash.2d 537, 408 P.2d 258 (1965); State v. Ladiges, 66 Wash.2d 273, 401 P.2d 977 (1965); State v. Miller, 59 Wash.2d 27, 365 P.2d 612 No doubt one may be partially licensed to perform those duties which are ......