State v. Louther

• Decision Date: 27 February 1945
• Docket Number: 29499.
• Parties: STATE v. LOUTHER.
• Court: Washington Supreme Court

156 P.2d 672

22 Wn.2d 497

STATE v. LOUTHER.

No. 29499.

Supreme Court of Washington

February 27, 1945

Rehearing Denied April 10, 1945.

Department 1.

Violas E. Louther was convicted of assault in the second degree, and he appeals.

Affirmed.

Appeal from Superior Court, Benton County; Matt L. Driscoll, judge.

George O. Beardsley, of Prosser, for appellant.

Charles L. Powell and James Leavy, both of Kennewick, for respondent.

MILLARD Justice.

Defendant was charged by information, as follows, with the crime of assault in the first degree:

'* * * That the said Violas E. Louther in the county of Benton, State of Washington, on the 27th day of July, 1944, did then and there being unlawfully and feloniously, with intent to kill a human being, assault a human being, to-wit: D. J.

LeMarr with a deadly weapon, to-wit: a knife, and did thereby inflict grievous bodily injury upon the body of said D. J LeMarr, * * *.'

The statute, Rem.Rev.Stat. § 2413, defines the crime of assault in the first degree as follows:

'Every person who, with intent to kill a human being, or to commit a felony upon the person or property of the one assaulted, or of another----

'(1) Shall assault another with a firearm or any deadly weapon or by any force or means likely to produce death; * * * shall be guilty of assault in the first degree * * *.'

The crime of assault in the second degree, which is included in the crime of assault in the first degree, is defined by the statute, Rem.Rev.Stat. § 2414, as follows:

'Every person who, under circumstances not amounting to assault in the first degree--* * *

'(4) Shall willfully assault another with a weapon or other instrument or thing likely to produce bodily harm; * * *

'Shall be guilty of assault in the second degree * * *.'

The trial resulted in a verdict of guilty of assault in the second degree. From the judgment and sentence pronounced against him on the verdict the defendant appeals.

Appellant, who while in a semi-intoxicated condition seriously wounded the prosecuting witness with a knife, pleaded not guilty and insisted that he acted in self-defense; or, if not, at the time the assault was made he was in such an intoxicated condition he could not have formed an intent to kill the prosecuting witness.

Only one error is assigned. Counsel for appellant argues that the crime which appellant was charged with committing consists of two essential elements: An assault, and a specific felonious intent to kill. It follows, contends counsel for appellant, that the trial court erred in instructing the jury that the element of intent to kill could be inferred or presumed from the act done even if it did not result in the death of the victim.

By instruction No. 1 the court quoted the charging part of the information and charged the jury that appellant had entered a plea of not guilty which put in issue every material allegation in the infromation and imposed upon the state the burden of proving the allegations beyond a reasonable doubt.

Instruction No. 2 charged the jury that the information in itself was merely an accusation made for the purpose of placing the appellant on trial and was not evidence of appellant's guilt and should not be considered as evidence of any fact required to be proved.

The court quoted in instruction No. 3 the statutory definitions of the crime of assault in the first degree and the crime of assault in the second degree.

Instruction No. 4 reads as follows:

'In order to find the defendant guilty of Assault in the First Degree, as charged in the Information in this case, it is necessary that you shall find from the evidence beyond a reasonable doubt the following essential elements of that offense:

'(1) That the defendant, Violas E. Louther, did assault D. J. LeMarr with a deadly weapon, to-wit: with a knife;

'(2) That such assault was made with the intent to kill the said D. J. LeMarr;

'(3) That said assault occurred on the 27th day of July, 1944;

'(4) That the same occurred in Benton County, State of Washington.'

By instruction No. 5, the court charged the jury as follows:

'In order to find the defendant guilty of Assault in the Second Degree, which offense is included within the charge of Assault in the First Degree, it is necessary that you shall find from the evidence beyond a reasonable doubt the following essential elements of the crime of Assault in the Second Degree:

'(1) That the said defendant, Violas E. Louther, did then and there being unlawfully and feloniously, wilfully assault D. J. LeMarr with a knife;

'(2) That said knife was a weapon and instrument likely to produce bodily harm;

'(3) That said events occurred in Benton County, Washington;

'(4) That the same occurred on the 27th day of July, 1944.'

Instruction No. 6 reads as follows:

'The term 'unlawfully', as used in the Information in this case, means just what the word would indicate, that is, without and beyond authority of the law.

"Feloniously' means with evil intent and without excuse or justification.

'An assault is an attempt unlawfully to use force or to inflict bodily injury on another, accompanied with the apparent present ability to give effect to the attempt if not prevented.

'You are instructed that a deadly weapon is one the use of which is likely to cause death or great bodily harm, and whether or not an instrument or weapon is a deadly weapon is a matter for the Jury to determine, in a case where such instrument or weapon is involved, from all the facts and circumstances in the case.

'There has been used in these instructions, the expressions 'great personal injury' and 'great bodily harm' and 'great bodily injury'. These terms or expressions are synonymous and mean what the words import; that is, great, not trifling, not slight, but they do not necessarily mean in contemplation of death or any injury that will result in death or might probably cause death.

'You are instructed that 'wilfully', as used in this case, means intentionally and purposely, as distinguished from mere accident or mistake.'

Instruction No. 7, of which appellant complains, reads as follows:

'The Court instructs the Jury that the law presumes that every man intends the natural and probably consequences of his own acts. It is not necessary to establish intent by direct and positive evidence, but intent may be established by inference, and in the same way you may determine other facts by taking into consideration the acts of the parties and all the facts and circumstances of the case.'

Instructions No. 8 and 9 read as follows:

'Instruction No. 8. No act committed by a person while in a state of voluntary intoxication shall be deemed less criminal by reason of his condition but whenever the actual existence of the particular purpose, motive or intent is a necessary element to constitute a particular species or degree of crime, the fact of his intoxication may be taken into consideration in determining such purpose, motive or intent.'

'Instruction No. 9. In other words, voluntary intoxication furnishes no excuse, justification or extenuation for a crime committed while under its influence, but if the defendant's mental condition at the time of the alleged criminal act is such that he was incapable of having a felonious or criminal intent his act is not a crime at all.

'If, therefore, there is any evidence in this case of voluntary intoxication of the defendant, such fact should be taken into consideration together with all the other facts established by the evidence to determine the existence or non-existence of an intent.'

Correct instruction was given respecting justifiable assault of a human being in the lawful defense of the person assaulted.

The jury was charged by a portion of instruction No....