State v. O'Neil
| Decision Date | 28 March 1946 |
| Docket Number | 29738. |
| Citation | 167 P.2d 471,24 Wn.2d 802 |
| Court | Washington Supreme Court |
| Parties | STATE v. O'NEIL et al. |
Department 2
Rehearing Denied May 4, 1946.
Lyle O'Neil and another were convicted of an attempt to commit burglary in the first degree. From a judgment and sentence entered after his probation was revoked, named defendant appeals.
Reversed with instructions.
Appeal from Superior Court, Pacific County; John I. O'Phelan, judge.
Fred M Bond, of South Bend, for appellant.
John T Welsh, of South Bend, and Robert A. Hannan, of Raymond, for respondent.
By an information containing two counts, defendants, Lyle O'Neil and Clifford Ketchel, were accused of second-degree assault and first-degree burglary. Omitting the formal parts, Count I charged that defendants did 'assault the person of Frank H. Spray and did strike and wound said Frank H. Spray about the body and face, and did wilfully inflict grievous bodily harm upon said Frank H Spray, with weapons, to-wit: a bottle or bottles partially filled with wine or some other liquid and pieces of broken glass; and said defendants and each of them did wilfully assault said Frank H. Spray with said bottles and pieces of broken glass, said bottles and pieces of broken glass being weapons or other instruments or things likely to produce bodily harm, and said defendants and each of them did assault said Frank H. Spray with intent to commit a felony, to-wit: the crime of burglary in the first degree by breaking into the apartment or living quarters of said Frank H. Spray, * * *'
Count II charged that, at the same time and place mentioned in Count I, defendants did 'break and enter, in the night time, the dwelling house of another, to-wit: the living quarters or apartment of Frank H. Spray, in which time and place there was a human being present within said dwelling house, to-wit: the person of Frank H. Spray with intent to commit a crime therein; and said defendants and each of them did break and enter said dwelling house, being armed with a dangerous weapon or weapons, to-wit: a wine or other kind of bottle or bottles partially filled with liquid and a piece or pieces of broken glass, and said defendants and each of them, while engaging in the night time in effecting said breaking and entering, did then and there assault the person of said Frank H. Spray, * * *'
The case came on for hearing Before the court and a jury May 18, 1944. At the conclusion of the state's case, the court dismissed the assault charge in Count I as to defendant Ketchel. The court submitted to the jury three forms of possible verdict as to Count I: A, finding defendant O'Neil guilty of assault in the second degree: B, finding him guilty of assault in the third degree; and C, finding him 'not guilty of assault.' The jury rejected forms A and B and returned as its verdict form C, finding defendant O'Neil not guilty of assault. On Count II, as to each defendant, the jury returned a verdict of guilty of an attempt to commit burglary in the first degree.
Motions in arrest of judgment and for new trial in behalf of defendant O'Neil were denied. The court deferred the entry of judgment and sentence however, and by an order entered June 30, 1944 (subsequently superseded by other similar orders), placed defendants on probation under certain conditions therein specified. Defendant O'Neil violated the conditions of his probation, and, on July 20, 1945, the court entered judgment and sentence, from which he has taken this appeal.
By his assignments of error, appellant presents two questions, first, whether the verdict of guilty of attempted first-degree burglary under Count II was inconsistent with the verdict of not guilty of assault under Count I; and, second, whether the evidence was sufficient to support the verdict of guilty.
A summary of the evidence presented to the jury is as follows: On the evening of March 18, 1944, appellant, who was then twenty-one years of age, and his codefendant, Clifford Ketchel, then seventeen years old, after taking their wives down town in Raymond, separated from each other. Ketchel became involved in a beer-tavern altercation, which led to a fight between him and one Frank Spray, a fifty-nine-year-old logger. Ketchel then left, and Spray went to his living quarters, which consisted of two rooms on the street level and in the same building as the beer tavern where the trouble started.
A short time later, according to Spray's testimony, someone knocked at his door and asked to be admitted. When he drew aside the curtain that covered the glass panel in the door and looked out, he saw several men ('4 or 5 parties * * * about six, surely six') outside. He told them that they could not come in, but they insisted upon doing so. Someone broke the glass panel in the door, and Ketchel 'put his hand in to open the latch.' Appellant Neil pulled out the glass and chunked them back and threw through the window at me.' (On cross-examination, Spray testified that Ketchel broke the hole in the glass by putting his left first through it, and that he did not see appellant O'Neil break 'any window.')
Some of the pieces of glass that appellant threw struck Spray on the side of the head and on the hand, but he 'didn't get cut [very] bad.' He 'picked up the ax' to protect his face. The record does not show the size or thickness of the pieces of glass appellant threw at Spray. The latter testified that, 'when it [the glass] was broken it all went to slivers; Mr. O' Neil pulled them out of the door and threw them at me.' Spray also stated that 'they threw three bottles' through the hole in the door and that one bottle struck him on the arm. On cross-examination however, he further testified: No witness testified that either appellant or Ketchel threw a bottle or that either of them ever had a bottle in his hand during the disturbance at Spray's quarters.
When Ketchel failed to unlatch the door by reaching in through the hole in the broken glass panel, he 'kicked the door in,' smashed the lower panel of veneer wood, and broke the latch off the door. It was then a little past midnight, and the crowd had grown to about twenty-five. Two policemen, attracted by the commotion, came up to investigate. They saw Ketchel kick the door once. Appellant O'Neil was standing with his hands on the door. The policemen told appellant and Ketchel and the rest of the crowd to disperse and 'clean out for home,' and took Spray to a hotel in Raymond. Spray 'had been drinking.' The only one of the two policemen who was asked about it did not remember seeing any scratches on Mr. Spray's face or about his head. The chief of police of Raymond, who saw him shortly after noon on March 19th, observed that he then had a black eye 'and a few scratches on his face.'
The testimony of appellant and his witnesses was to the effect that, when Ketchel came back after his fight with Spray, Ketchel and appellant and their wives went to Spray's place, and, as they approached, saw Spray go into his quarters with an ax in his hands. Ketchel knocked on the door and asked Spray to come out, but he refused to do so. A crowd gathered and the policemen came along and sent them home. Both appellant and Ketchel denied that either of them had broken the glass in the door, kicked the door, or had thrown any bottles or pieces of glass at Mr. Spray.
By Count II of the information, appellant was charged with first-degree burglary, but he was found guilty of an attempt to commit that offense. An attempt to commit a crime is an act done with intent to commit that crime and tending, but failing, to accomplish it. Rem.Rev.Stat. § 2264. Our problem as to the question of the sufficiency of the evidence to sustain the verdict of guilty is to...
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State v. Wilson
...reasoning, dictated application of the Dunn rule. Id. Ng also specifically overruled the prevalent state court rule of State v. O'Neil, 24 Wash.2d 802, 167 P.2d 471 (1946), that when two offenses growing out of the same transaction are charged in separate counts and one offense includes ele......
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State v. Goins
...Powell, 469 U.S. at 66, 105 S.Ct. 471. The Washington Supreme Court initially rejected the Dunn rule. In State v. O'Neil, 24 Wash.2d 802, 808-09, 167 P.2d 471 (1946), overruled by State v. Ng, 110 Wash.2d 32, 750 P.2d 632 (1988), the court adopted what was then the majority rule among the s......
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State v. Ng
...into the jury's deliberations that courts generally will not undertake. Powell, at 66, 105 S.Ct. at 477. In State v. O'Neil, 24 Wash.2d 802, 808-09, 167 P.2d 471 (1946), this court noted the Dunn rule, but adopted the then prevalent state court rule that where two offenses growing out of th......
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...these admittedly inconsistent verdicts would have resulted in the reversal of the inconsistent general verdict. See State v. O'Neil, 24 Wash.2d 802, 167 P.2d 471 (1946). But Washington no longer follows that rule. State v. Ng, 110 Wash.2d 32, 750 P.2d 632 (1988). In Ng, the appellant argued......