State v. Stationak
| Decision Date | 25 April 1968 |
| Docket Number | No. 39530,39530 |
| Citation | 73 Wn.2d 647,440 P.2d 457 |
| Court | Washington Supreme Court |
| Parties | The STATE of Washington, Respondent, v. Thomas STATIONAK, also known as Tom Station, Appellant. |
Alfred McBee, Mount Vernon, for appellant.
Harry A. Follman, Pros. Atty., K.R. St. Clair, Deputy Pros. Atty., Mount Vernon, for respondent.
The defendant was charged by information with the crime of assault in the first degree as follows:
He, the said THOMAS STATIONAK a/k/a TOM STATION, in the County of Skagit, State of Washington, on or about the 12th day of September, 1966, did wilfully, unlawfully and feloniously, with intent to kill one Barbara Stevens, did assault said Barbara Stevens with a firearm, to-wit: a rifle, then and there loaded with powder and ball, which he, the said THOMAS STATIONAK a/k/a TOM STATION then and there had and held, and did then and there wilfully, unlawfully and feloniously with said rifle, shoot at, toward and into the body of said Barbara Stevens, contrary to the form of the statute in such cases made and provided and against the peace and dignity of the State of Washington.
To this charge the defendant entered a plea of not guilty. He was tried before a jury, convicted and sentenced to a penal institution of this state for a term of not more than 20 years.
Defendant and Barbara Stevens, the victim, dated steadily during the school year 1964--65. Although of the same age, Barbara was a senior and the defendant a sophomore, both at Anacortes High School. He was welcome in her home, had dinner there on several occasions, and initially maintained a satisfactory relationship with other members of her family.
In the fall of 1965, Barbara entered Skagit Valley College. She there involved herself in academic and social activities and, in doing so, became continually less enchanted with the defendant's company. He resented this fact, resented her dating other boys, was possessive, and argued with her frequently. It reached the point where every date occasioned a violent argument. By February 17, 1966, Barbara 'no longer wanted to see him or have anything to do with him.'
She said that on February 24, 1966, at her school, he handed her a note bearing the statement She refused. Later that day, at the police station, he told her 'I will get you.' Other brief encounters occurred between that date and the morning of the alleged assault.
Barbara testified that on September 12, 1966, at about 9 a.m., the defendant entered her family home and appeared in the doorway to her bedroom. He was holding a rifle. She was frightened and cried downstairs to her mother: The defendant interrupted: 'If you go for help, Mrs. Stevens, I'll kill her.' He turned to the victim and insisted that she go with him, but she refused:
The bullet entered her chest, the lower part of her right lung, hit a vertebra, and shattered the whole left side of her spinal cord. Barbara is paralyzed from the waist down.
Defendant claims five assignments of error, any one of which should entitle him to a new trial. They are argued, however, as but three in number and will be treated accordingly.
The court submitted to the jury the question of whether the defendant was guilty of the crime of assault in the first degree or assault in the second degree, a lesser included offense. The defendant asserts that an instruction on third degree assault should also have been given. He bases this argument on insistent testimony that he never knew the gun was loaded and, therefore, neither intentionally nor willfully intended murder or bodily harm; that when the elements of intent and wilfulness are removed, and an assault still remains, that it constitutes third degree assault.
Since third degree assault is defined as one 'not amounting to assault in either the first or second degrees,' 1 if the facts of the case are such that defendant could have been found guilty of either first or second degree assault, then he could not have been found guilty of third degree assault.
A review of the record discloses ample evidence to support a verdict of assault in the first degree. 2 On different occasions the defendant had threatened to kill Barbara, he broke into her home, pointed a deadly weapon at her, it discharged and she was seriously injured. An inference of the intent to kill might clearly be derived from those facts.
Should the jury determine that those facts did not constitute a first degree assault, they would, however, certainly support a verdict of second degree assault. 3 We say this because we have previously held that one who points an apparently loaded gun at another within range may be guilty of second degree assault under RCW 9.11.020(4) even though the gun was not in fact loaded. It is the apparent present ability to give effect to the attempt that controls, not the actual ability. Peasley v. Pudget Sound Tug & Barge Co., 13 Wash.2d 485, 125 P.2d 681 (1942); State v. Shaffer, 120 Wash. 345, 207 P. 229 (1922). We adhere to that rule.
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Under all of the evidence then, the defendant was guilty of first or second degree assault or of none at all. There was no evidence which would justify the jury in returning a verdict of guilty of assault in the third degree. The proposed instruction on third degree assault was, therefore, properly refused.
It is next stated that the trial court erroneously instructed the jury as follows:
For the purpose of this case, the word 'assault' means unlawfully using force to inflict bodily injury on another.
Shooting at, towards or into the body of another is an assault as that term is used in these instructions.
Defendant claims that this instruction is identical with one given in State v. St. Peter, 63 Wash.2d 495, 496, 387 P.2d 937, 939 (1963), where we held that We would add, however, that in both the St. Peter case and here, such statement did not stand alone. It was accompanied by other sufficiently clarifying instructions. The jury was here advised that '(s)pecific intent to take life is an indispensable and necessary element of the crime of first degree assault,' and that to convict the defendant, they would have to find that he ...
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