State v. Lillie

• Decision Date: 20 September 1910
• Citation: 110 P. 801,60 Wash. 200
• Parties: STATE v. LILLIE.
• Court: Washington Supreme Court

110 P. 801

60 Wash. 200

STATE v. LILLIE.

Supreme Court of Washington

September 20, 1910

Appeal from Superior Court, Yakima County; H. B. Rigg, Judge.

N. H Lillie was convicted of assault with a deadly weapon, and he appeals. Affirmed as simple assault, and remanded.

H. J Snively, for appellant.

Henry H. Wende and Harcourt M. Taylor, for the State.

GOSE J.

The appellant was tried, convicted, and sentenced to imprisonment in the penitentiary upon an information charging him with having made an assault upon the person of one L. M. Hilton with a deadly weapon with the intent to inflict a bodily injury, and has appealed from a judgment entered upon the verdict of the jury.

The charging part of the information is as follows: 'He, the said Nevada H. Lillie, on or about the 25th day of April 1906 A. D., in the county of Yakima, state of Washington, then and there being, did then and there willfully, unlawfully, and feloniously make an assault in and upon the person of one L. M. Hilton with a deadly weapon, to wit, a hammer, which he then and there had and held in his hand, with the intent then and there to inflict upon the person of the said L. M. Hilton a bodily injury, no considerable provocation appearing therefor, contrary to the statute in such case made and provided, and against the peace and dignity of the state of Washington.' At the close of the state's case, the appellant challenged the sufficiency of the state's testimony, and moved for a dismissal of the case. He also urges here that there is not sufficient evidence to support the verdict of the jury, and that there is no substantial evidence tending to show that an assault was made with a hammer. We think the latter contention must be sustained. It is admitted that Hilton had the hammer when the altercation began. Hilton testified that the appellant first struck him on the side of the head 'in the jaw' 'with something, I do not know what'; that the blow 'addled' and 'stunned' him; that he was rendered 'unconscious for some time'; that he is not conscious of having been struck more than one blow. He further states that, when he received this blow, he had the hammer in his hand; that, 'I know positively that he did not hit me with that hammer.' This statement has reference to the first blow. Hilton had no further recollection of the altercation. The state called one Arthur Harper, who bore testimony as follows: That Hilton was lying down when he first saw him; that he could only see his head and shoulders, that he could see all of appellant's body and his right arm as he was kneeling by Hilton; that, when he first observed the appellant, he had a hammer 'in his right hand, I think.' Later he said: 'I think he (meaning appellant) had the hammer when I first saw him, but I don't remember.' To the inquiry, 'What did he do with it?' meaning the hammer, he answered 'I do not know. I think he struck Mr. Hilton with the hammer, but I would not be willing to swear that he did strike him. * * * He struck the man while I was around there, but whether he had the hammer in his hand when he struck the man I do not know. * * * He struck short blows when he struck. Whether he had the hammer in his hand I do not know. * * * I thought at that time he did strike him with the hammer. There had been people talking to me there then in Granger every day, coming around and saying he struck him with the hammer, and they were all talking about it, and I thought at that time he did strike him with the hammer, but a was excited and scared, and, as I said, I would not be willing to swear that he did strike him or that he did not strike him.'

Russell Chamberlain, a boy 10 years of age, was introduced by the state, and testified that the appellant advanced toward Hilton, 'then he doubled up his fist and knocked Mr. Hilton down'; that he then saw the appellant's elbow 'every time he hit him, go up'; that as the appellant walked away he heard Hilton exclaim, 'Oh, dear me,' to which the appellant replied: 'I will learn you to steal a wrench from me.' He further stated that he did not see the appellant strike with the hammer. No other witness testified to the assault.

Dr Dempster, the attending physician, speaking of Hilton's wounds, said: 'Well, he had an open wound over the right eye, probably about 2 1/2 to 3 inches in length, following the bony portion of the...