State v. Snider

• Decision Date: 20 July 1903
• Citation: 73 P. 355,32 Wash. 299
• Parties: STATE v. SNIDER.
• Court: Washington Supreme Court

73 P. 355

32 Wash. 299

STATE v. SNIDER.

Supreme Court of Washington

July 20, 1903

Appeal from Superior Court, Skagit County; George A. Joiner, Judge.

Matt Snider was sentenced for assault with a deadly weapon with intent to inflict bodily injury, and appeals. Reversed.

G. C. Israel and E. C. Million, for appellant.

M. P Hurd and J. C. Waugh, for the State.

ANDERS J.

The appellant and one Julius Snider were jointly tried in the superior court of Skagit county upon an information charging and alleging that 'the said Matt Snider and Julius Snider, in the county of Skagit, state of Washington, on the 9th day of August, A. D. 1902, then and there being, in a rude, insolent, and angry manner unlawfully, feloniously willfully, and purposely, and of their deliberate and premeditated malice, did attempt to kill and murder one Alexander Brown, coupled with the present ability to carry into execution such attempt by assaulting, striking shooting, and wounding him, the said Alexander Brown, with a deadly weapon, to wit, a revolver loaded with powder and ball, with intent to kill and murder him, the said Alexander Brown, no considerable provocation appearing therefor.' Each of the defendants entered a plea of not guilty, and both were subsequently tried together by a jury. After the cause was submitted to the jury and considered by them, they returned the following verdict: 'We, the jury impaneled to try the above-entitled cause, say that we find the defendant Matt Snider guilty of the crime of assault with a deadly weapon, and that we find the defendant Julius Snider guilty of assault and battery.' This verdict was received by the court and filed, and the jury discharged, and thereafter, and before sentence, the appellant moved the court to arrest judgment and sentence on the verdict as returned by the jury as to any offense save and except that of simple assault. This motion and request was denied, and the court thereupon sentenced the appellant to imprisonment in the state penitentiary for the period of two years. From that judgment and the order of the court denying the said motion this appeal is prosecuted.

Section 7057, Ballinger's Ann. Codes & St., provides that 'An assault with an intent to commit murder, rape, the infamous crime against nature, mayhem, robbery or grand larceny, shall subject the offender to imprisonment in the penitentiary for a term not less than one year nor more than fourteen years;' and section 7058 declares that: 'An assault with a deadly weapon, instrument or other thing, with an intent to inflict upon the person of another a bodily injury, where no considerable provocation appears, or where the circumstances of the assault show a willful, malignant and abandoned heart, shall subject the offender to imprisonment in the penitentiary not exceeding two years, or to a fine not exceeding five thousand dollars, or to both such fine and imprisonment.' It is not claimed on the part of the appellant that the information does not charge the crime of an assault with an intent to commit murder, under section 7057 of the statute above quoted. On the contrary, it seems to be conceded by the learned counsel for the appellant that the information sufficiently charges that offense; but they suggest, without specially urging, the proposition that the offense of an assault with a deadly weapon with intent to inflict a bodily injury cannot be included in the charge of an assault with intent to commit murder, for the reason that it is a distinct and independent crime. Our statute provides, it is true, that the indictment or information must charge but one crime, and in one form only, except, that, when the crime may be committed by use of different means, the indictment may allege the means in the alternative (Ballinger's Ann. Codes & St. § 6844), and therefore, in this state, an information or indictment which charges more than one offense is bad, and, if objected to at the proper time and in the proper manner, must be set aside. But an objection on the ground of duplicity will be deemed waived if not made until after verdict. Territory v. Heywood, 2 Wash. T. 180, State v. Jarvis,

18 Or. 360, 23 P. 251. And, inasmuch as the objection to the information now under consideration was not presented to or determined by the trial court, it cannot be considered on this appeal. It cannot be made for the first time in this court.

The sole question properly presented for our determination is whether the verdict of the jury warrants the judgment and sentence pronounced by the court. It is provided in section 6955, Ballinger's Ann. Codes & St., that upon an indictment or information for an offense consisting of different degrees the jury may find the defendant not guilty of the degree charged in the indictment or information, and guilty of any degree inferior thereto, or of an attempt to commit the offense; and section 6956 further provides that in all other cases the defendant may be found guilty of an offense the commission of which is necessarily included within that with which he is charged in the indictment or information. We think the information in this case clearly charges the appellant with the crime of an assault with an intent to commit murder under section 7058 of the Code, and the appellant might have been properly convicted of that offense, provided the proof of guilt was sufficient to satisfy the jury. And under section 6956 supra, the appellant could have been found guilty, upon sufficient evidence, of any offense necessarily included within the offense with which he was charged in the information and properly alleged. As we have seen, the jury in this case by their verdict found the appellant 'guilty of assault with a deadly weapon.' The learned judge of the superior court considered this verdict as a finding of the jury that the appellant was guilty of the crime of an assault with a deadly weapon with intent to inflict upon the person of Alexander Brown a bodily injury, and accordingly sentenced him to imprisonment in the penitentiary for the maximum period prescribed by section 7058, supra, of the statute. Assuming that the crime for which appellant was sentenced was sufficiently alleged in the information, the question arises whether or not the jury, by their verdict, actually found him guilty of that offense. It is insisted by the learned counsel for the respondent that, inasmuch as appellant did not object to the form of the verdict, or to its reception by ...