State v. Romano

• Decision Date: 28 December 1905
• Citation: 41 Wash. 241,83 P. 1
• Parties: STATE v. ROMANO.
• Court: Washington Supreme Court

83 P. 1

41 Wash. 241

STATE v. ROMANO.

Supreme Court of Washington

December 28, 1905

Appeal from Superior Court, King County; Boyd J. Tallman, Judge.

Matteo Romano was convicted of assault with intent to commit murder and appeals. Affirmed.

Wm. C Keith and E. F. Kienstra, for appellant.

Kenneth Mackintosh, Hermon W. Craven, and William D. Totten, for the State.

CROW, J.

Appellant Matteo Romano, was convicted in the superior court of King county of the crime of assault with intent to commit murder and has appealed to this court.

About 2 o'clock on the morning of March 19, 1904, while Sebastian Ucci, the prosecuting witness, was asleep in his room in the city of Seattle, some unknown person made an attack upon him with a sharp instrument, cutting his throat, and immediately thereafter shot him in the back. He did not see, nor was he able to identify, his assailant. On May 12, 1904, appellant was arrested and charged with said crime. The evidence shows that prior to his arrest, in conversations with Mrs Sebastian Ucci, the divorced wife, and Mrs. Concheta Rosetta the daughter of said Sebastian Ucci, appellant admitted he had made said assault. Two days after his arrest the police officers found a shotgun and empty shell in his room, which were admitted as evidence. Fifty or sixty shot taken from Ucci's wound, of the size of those that had been contained in the empty shell, were also admitted as evidence. Officer Adams, who arrested appellant, testified that while appellant was on the way to prison he said to John Rosetta, husband of Concheta Rosetta: 'I will cut your throat if I get out of this. I may get a year, but I will cut your throat'--and that he also made angry statements to said Rosetta in the Italian language, which Adams could not understand. From the testimony of appellant it appears that he claims to have sustained criminal relations with said Concheta Rosetta for a considerable period of time prior to his arrest; also that much bitterness and animosity existed between him and said John Rosetta. He evidently regarded John Rosetta and his wife as being responsible for his arrest. John Rosetta testified that, while appellant was in the custody of Officer Adams, he, speaking in the Italian language, said: 'I may get two or three years; but when I get back I will do the same to you as I did to your father-in-law.' Mrs. Sebastian Ucci, divorced wife of the prosecuting witness, testified to the admission made to her by appellant, and Mrs. Concheta Rosetta, daughter of the prosecuting witness, testified that about a month previous to his arrest appellant had told her that, if she did not leave her husband and live with him, he would do the same to her as he had her father, and that he had cut and shot her father. It appears that one the day of his arrest appellant was expected to call at the house of Concheta Rosetta, and that she, being fearful of an assault, caused Officer Adams to be notified, who, as the result of such notice, was present and arrested appellant when he arrived, at which time appellant was heavily armed.

Appellant has made three assignments of error: First. That the court erred in giving the following as a portion of one of the instructions to the jury: 'And I further charge you that every sane person is presumed to intend the natural and ordinary consequences of his voluntary act.' Second. That the court should have set aside the verdict and granted a new trial, for the reason that the information does not charge appellant with shooting the prosecuting witness, and that the court therefore erred in admitting the shotgun in evidence. Third. That the court erred in refusing to set aside the verdict for insufficiency of evidence as to the identity of the person who made the assault.

Appellant evidently bases his main reliance for a reversal upon his exception to the charge of the court on the question of intent, citing the case of State v. Dolan, 17 Wash 499, 50 P. 472, and in his opening brief says: 'The prosecuting witness was not murdered, and the above instruction as applied to the facts of this case left the jury to understand that, as death might have resulted as the natural consequence of the assault, the law presumes that he intended that such consequences should follow. If death had resulted from the act, the instructions would have been applicable, but this court has held that such an instruction is inapplicable in the case of assault where death did not result, and that the intent to murder must be established as any other fact.' Before discussing the instructions in State v. Dolan, supra, or those in the case at bar, we call attention to a material variance of the information in the Dolan Case from the one upon which appellant has been prosecuted. In State v. Ackles, 8 Wash. 462, 36 P. 597, this court held that on the information then under consideration, which charged that the defendant 'did unlawfully, purposely and of his premeditated malice, and with intent to murder, assault, and shoot one Benjamin Franklin with a deadly weapon, * * * with intent to murder the said Benjamin Franklin,' said defendant could not be convicted of the crime of making an assault with a deadly weapon with intent to do bodily harm, for the reason that the latter crime was not included in the information. Anders, J., there speaking for this court, said: 'While it is true that the jury may find a defendant not guilty of the crime charged, but guilty of an offense of lesser degree, or of an offense necessarily included within that charged, it is also true that 'accusation must precede conviction,' and that no one can legally be convicted of an offense not properly alleged. The accused, in criminal prosecutions, has a constitutional right to be apprised of the nature and cause of the accusation against him. Const. art. 1, § 22. And this can only be made known by setting forth in the indictment or information every fact constituting an element of the offense charged. This doctrine is elementary and of universal application, and is founded on the plainest principle of justice. Tested by this rule, we think the verdict and judgment in this case were erroneous, and must be set aside. Under our statute, an assault with a deadly weapon with intent to inflict upon the person of another a bodily injury is made a felony only upon the express condition that the assault is without considerable provocation, or where the circumstances of the assault show a willful, malignant, and abandoned heart.' The information in State v. Ackles, supra, which is set forth at page 463 of 8 Wash., page 598 of 36 Pac., of the opinion discloses an utter absence of any allegation that the assault was without any considerable provocation, or that it was the impulse of a willful, abandoned, or malignant heart. 2 Ballinger's Ann. Codes & St. § 7058. This court therefore reversed the final judgment entered on a verdict finding the defendant guilty of the lesser crime of an assault with a deadly weapon with intent to do bodily harm. In State v. Young, 22 Wash. 274, 60 P. 650, the defendant was prosecuted upon an information charging him with the crime of making an assault upon the prosecuting witness with a deadly weapon with intent to kill and murder said prosecuting witness. But an examination of the information, which appears in the opinion, will show that by reason of the use of the words 'with the intent aforesaid, no considerable provocation appearing therefor,' it was sufficient to sustain a conviction of the lesser crime of assault with intent to do bodily harm. The trial court, however, refused to instruct the jury that they could find the defendant guilty of such lesser crime, and this court, speaking through Dunbar, J., held such refusal to be prejudicial error, saying: 'The refusal to the court to give this instruction is alleged here as error. We think it was error, and prejudicial to the defendant. It is true that in State v. Ackles, 8 Wash. 462, 36 P. 597, we held that under the information in that case it was not competent for the jury to return a verdict of guilty of assault with a deadly weapon with intent to do bodily harm, but for the reason that the lesser crime was not described in the information; there being no allegation that the assault was without considerable provocation, or that it was the impulse of a willful, abandoned, or malignant heart. * * * Under our statute (Ballinger's Ann. Codes & St. § 7058) an assault with a deadly weapon, with intent to inflict upon the person of another a bodily injury, is made a felony only upon the express condition that the assault is without considerable provocation, or where the circumstances of the assault show a willful, malignant, and abandoned heart; and, when an act is punishable in a particular manner under certain conditions, these conditions must be set forth so as to show that the act is punishable. But the information in this case meets all the objections urged by the court in the case cited. It is alleged that the assault was made in the manner and form stated, no considerable provocation appearing therefor, and as the statute is in the alternative, so far as the conditions mentioned (viz., no considerable provocation appearing, or that it was the impulse of a willful, abandoned, and malignant heart) are concerned, the statement of the existence of either was sufficient.' By these decisions the law of this state is well settled to the effect that, where an information charging a defendant with making an assault with a deadly weapon with intent to commit the crime of murder is not so drawn as to include the lesser crime of assault with intent to do bodily harm, a conviction of the latter crime cannot be permitted; but, where it is so drawn, if would be error for the...