State v. Lundell, 649--II
| Decision Date | 08 November 1972 |
| Docket Number | No. 649--II,649--II |
| Citation | 503 P.2d 774,7 Wn.App. 779 |
| Court | Washington Court of Appeals |
| Parties | The STATE of Washington, Appellant, v. Carl O. LUNDELL, Respondent. |
John C. Markel, Pros. Atty., Port Orchard, for appellant.
Quinby R. Binghan, of Mann, Copeland, King, Anderson, Bingham & Scraggin, Tacoma, for respondent.
The sole question in this appeal is whether placing one or two strands of barbed wire across a private roadway is prohibited by RCW 9.41.180, entitled by the legislature 'Setting Spring Gun', where the body of the act refers to setting a 'so-called trap, spring pistol, rifle or other deadly weapon.' The trial court held that it was not and dismissed the action because the information did not charge a crime under that statute. We agree.
The information charged:
He, the said CARL O. LUNDELL, in the County of Kitsap, State of Washington, on or about the 9th day of May 1971, wilfully, unlawfully and feloniously did set a so-called trap or other deadly weapon, to-wit: one or more strands of barbed wire placed across a path or roadway in such a manner as to constitute a so-called trap or other deadly weapon as a result of which one GAY BUCK, a human being, was injured, to-wit: by multiple lacerations about his face and throat; contrary to RCW 9.41.180.
Prior to argument on defendant's motion to dismiss, it was agreed that the barbed wire was across a road which was of normal width and it was located on the real property of defendant.
RCW 9.41.180 provides:
Setting Spring Gun. Every person who shall set a so-called trap, spring pistol, rifle, or other deadly weapon, shall be punished as follows:
(1) If no injury result therefrom to any human being, by 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.
(2) If injuries not fatal result therefrom to any human being, by imprisonment in the state penitentiary for not more than twenty years.
(3) If the death of a human being results therefrom, by imprisonment in the state penitentiary for not more than twenty years.
This statute was enacted as section 266, chapter 249, Laws of 1909, as a part of a comprehensive criminal code. The original enactment and the statute are identical in phraseology. The only differences between the original enactment and the codified statute are the placement and italicizing of the section headnote and the presence of a marginal note in the original act. We illustrate the differing portions.
Sec. 266. Setting Spring Gun.
Every person who shall set a so-called trap, spring pistol, rifle, or other deadly weapon, Setting shall be punished as follows: spring gun.
(Penalty provisions deleted.)
In Merriam-Webster's Third International Dictionary (1969) a spring gun is defined as a set gun. A set gun is described as 'a firearm set as a trap to fire on the intruder or on game when a wire attached to its trigger is disturbed.'
Although the statute in question has never been judicially interpreted in this state, two early Washington cases demonstrate the type of trap commonly referred to as a spring gun and the need for a legislative clarification of the law relating to the use of spring guns. See State v. Barr, 11 Wash. 481, 39 P. 1080 (1895); and State v. Marfaudille, 48 Wash. 117, 92 P. 939 (1907). In the Marfaudille case, decided 13 months before the 1909 legislature convened, the Supreme Court reversed a conviction of murder in the second degree. The defendant had rigged a spring gun within a trunk in a room he rented. When the proprietress of the lodging house opened the trunk the gun was discharged and she was killed instantly.
The state argues that the allegation that the defendant 'wilfully, unlawfully and feloniously did set a so-called trap or other deadly weapon, to-wit: one or more strands of barbed wire placed across a path or private driveway in such a manner as to constitute a so-called trap or other deadly weapon' brings the charge within the ambit of the statute. We cannot agree because the statute does not convey a clear and unambiguous definition of a 'so-called trap.' The statute, therefore, is subject to the rules of statutory construction.
If a penal statute is ambiguous, it must be interpreted strictly against the state and liberally in favor of the accused. Strict construction requires that doubts in construction of a penal statute must be resolved against including borderline conduct. Seattle v. Green, 51 Wash.2d 871, 322 P.2d 842 (1958); State v. Boyer, 4 Wash.App. 73, 480 P.2d 257 (1971).
We are aided by another rule of statutory construction. If a statute is ambiguous, section headings and marginal notes which are enacted as a part of the act may be used to assist in determining legislative intent. 1 Under such circumstances section headings and marginal notes must be given as much force as the title of the entire act. In determining...
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