State v. Shaffer

• Decision Date: 01 June 1922
• Docket Number: 16919.
• Citation: 207 P. 229,120 Wash. 345
• Court: Washington Supreme Court
• Parties: STATE v. SHAFFER.

207 P. 229

120 Wash. 345

STATE v. SHAFFER.

No. 16919.

Supreme Court of Washington

June 1, 1922

Department 2.

Appeal from Superior Court, Chelan County; Wm. A. Grimshaw, Judge.

Dan Shaffer was convicted of assault in the second degree, and appeals. Affirmed.

Herman Howe, of Leavenworth, for appellant.

Sam. R. Summer and Frank Lebeck, both of Wenatchee, for the State.

MAIN J.

The defendant was charged by information with the crime of assault in the second degree. The trial resulted in a verdict of guilty. After motion for new trial was overruled he was sentenced to the state penitentiary for a minimum period of 2 years, and thereafter appealed from the judgment. The facts necessary to the understanding of the questions to be determined may be summarized as follows:

On the 2d day of December, 1920, and for some time prior thereto the appellant resided in Chelan county, a short distance from the town of Leavenworth. In addition to himself, his family consisted of his wife and two young ladies, one of whom was his daughter. The sheriff of the county, believing that the appellant had intoxicating liquor in his home in violation of the law, regularly obtained a search warrant, and on the evening of the day above mentioned, together with two deputies, went to the home of appellant for the purpose of making a search. They arrived there a few minutes past 9 o'clock in the evening, and in response to their rap at the door the appellant appeared, and was advised by the sheriff who he was and what his purpose was. In response to this the appellant unequivocally stated that the officers would not be permitted to make the search because he claimed that his wife was ill and could not be disturbed. The sheriff told him that if his wife was ill they would not search the room where she was, and would not in any manner disturb her. After some conversation the appellant entered the house, and, as he says, went up stairs to consult his wife, who was lying upon a bed. As he returned and approached the door the officers were just opening it for the purpose of entering. One of the deputies had stepped inside, when he was met by the appellant, who pointed at him a revolver and refused to permit the officers to proceed further. A conversation then took place, which lasted for approximately 10 minutes, during which time the appellant kept the revolver in his hand and pointed at the deputy sheriff, who was in advance. Before the conversation ceased, the wife of the appellant came downstairs and into the room, where she engaged in conversation with her daughter and the other young lady. The officers finally gave up the attempt to make the search, and thereafter the defendant was charged with the crime of assault in the second degree, with the result above indicated.

The charge is based upon subdivision 4 of section 2414 of Remington's 1915 Code, which reads as follows:

'Every person who, under circumstances not amounting to assault in the first degree--* * * (4) Shall willfuly assault another with a weapon or other instrument or thing likely to produce bodily harm; * * * Shall be guilty of assault in the second degree and be punished by imprisonment in the state penitentiary for not more than ten years or by a fine of not more than one thousand dollars, or by both.'

The first error assigned is that the court did not directly define, in instructing the jury, the term 'willfully' as used in the statute. In the instruction given this word was said to mean 'intentional; that is, not accidental.' Appellant objects to the instruction because, he says, it did not go far enough. He requested one to the effect that the word meant not only intentional, but with a bad motive or purpose and without justifiable excuse or reasonable ground for believing the act to be unlawful. Conceding that there might be a set of facts which would require a more amplified definition of the term, the instruction given was correct as far as it went, and that requested by the appellant was properly refused. There is no evidence which would authorize the giving of an instruction that the appellant had ground for believing that he was acting in a lawful manner or had any justifiable excuse for his conduct. He admitted in testifying that he was making the gun play as a bluff.

It is next claimed that the court erred in refusing to submit to the jury the question as to whether the appellant was guilty of the crime of assault in the third degree. It may be admitted that, if there was any evidence which would justify the jury in finding a verdict of guilty of assault in the third degree, the instruction should have been given. The evidence showed that the appellant was guilty of assault in the second degree as...