State v. Rush
| Decision Date | 06 July 1942 |
| Docket Number | 28663. |
| Citation | 127 P.2d 411,14 Wn.2d 138 |
| Parties | STATE v. RUSH. |
| Court | Washington Supreme Court |
Department 1.
Theodore N. Rush was convicted of assault in the second degree, and he appeals.
Affirmed.
Appeal from Superior Court, Grant County; E. W. schwellenback judge.
Clinton & Southard, of Ephrata, for appellant.
Lowell B. Vail and James F. Wickwire, both of Ephrata, for respondent.
The defendant was charged by information with the crime of assault in the second degree. From sentence and judgment on the verdict of guilty the defendant appealed.
Counsel for appellant first contend that the state failed to prove commission by appellant of the crime charged.
The prosecuting witness testified that appellant, when not distant more than four feet from him, menaced the prosecuting witness with a pocket knife, which had one sharp blade three and one-fourth inches long, after he refused to accede to the request of appellant for a loaf of bread off the truck which he was operating; that appellant threatened to cut the throat of the prosecuting witness. The prosecuting witness proceeded to deliver the bread at the store in front of which the threat was made. When this witness returned appellant was walking down the street. Another witness testified that the knife of the appellant was long-bladed; that the appellant was flipping the blade with his fingers as he proceeded along the street for a distance of probably fifty feet, immediately following the assault. Three or four hours later the appellant was taken into custody.
The charge on which appellant was convicted is based upon subd. 4 of Rem.Rev.Stat., § 2414, which reads 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 * * *.'
We are committed to the rule that an assault is an attempt, with unlawful force, to inflict bodily injury upon another accompanied with the apparent present ability to give effect to the attempt if not prevented. Within this definition one would be guilty of assault if he raised his hand in anger with an apparent purpose to strike and sufficiently near to enable the purpose to be carried into effect. Peasley v Puget Sound Tug and Barge Company, Wash., 125 P.2d 681. Whether there has been an assault in a particular case depends more on the apprehension...
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State v. Acosta
...(1910) (civil assault); Peasley v. Puget Sound Tug & Barge Co., 13 Wash.2d 485, 125 P.2d 681 (1942) (civil assault); State v. Rush, 14 Wash.2d 138, 127 P.2d 411 (1942); State v. Stewart, 73 Wash.2d 701, 440 P.2d 815 (1968). In Rush, the court noted that the statute on second degree assault ......
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State v. Byrd
...v. Stewart, 73 Wash.2d 701, 703, 440 P.2d 815 (1968); State v. Alvis, 70 Wash.2d 969, 971, 425 P.2d 924 (1967); State v. Rush, 14 Wash.2d 138, 139, 127 P.2d 411 (1942); Peasley, 13 Wash.2d at 505, 125 P.2d 681. 3 More recently, we recognized a second definition of assault: [A]n assault is "......
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State v. Chavez
...RCW 9A.04.060.10 Long before then, the common law provided for the definition of assault in criminal cases. See, e.g., State v. Rush, 14 Wash.2d 138, 127 P.2d 411 (1942). The legislature can be deemed to have acquiesced in the definition when it supplemented the criminal code with the commo......
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State v. Chavez
...courts have supplied the common law definition. See State v. Frazier, 81 Wash.2d 628, 631, 503 P.2d 1073 (1972); State v. Rush, 14 Wash.2d 138, 139-40, 127 P.2d 411 (1942); State v. Shaffer, 120 Wash. 345, 348-50, 207 P. 229 (1922). Chavez argues that this judicial definition of an essentia......