State v. Stevens

• Citation: 251 P.2d 163,41 Wn.2d 694
• Decision Date: 18 December 1952
• Docket Number: No. 32204,32204
• Parties: STATE, v. STEVENS.
• Court: Washington Supreme Court

Page 694

41 Wn.2d 694

251 P.2d 163

STATE, v. STEVENS.

No. 32204.

Supreme Court of Washington, Department 2.

Dec. 18, 1952.

Rehearing Denied Jan. 27, 1953.

R. W. Greene and David E. Rhea, Bellingham, for appellant.

Tom A. Durham and Jack Rowles, Bellingham, for respondent.

OLSON, Justice.

This is an appeal from a judgment and sentence entered upon the verdict of a jury convicting defendant of the crime of assault in the second degree.

Briefly stated, the facts are as follows: A quarrel developed between defendant and his wife in their home, on an occasion when he had been drinking heavily. He struck his wife with his open hand, and she ran out of the house. She testified that he had a 30-40 Krag rifle, and that she was afraid of him. After she had left the house and was some distance down the street, defendant went to the front porch and fired one shot from the rifle. There was evidence that the rifle was pointed in the direction of his wife when the shot was fired, and defendant's statement to the police was that he fired one shot to frighten her.

Defendant has assigned error upon the court's refusal to instruct the jury that, upon the evidence, it could find defendant guilty of the offense of assault in the third degree, contending that, when he struck his wife with his open hand, he committed that offense. We do not decide whether or not a separate charge would have been necessary to this case to sustain a conviction for the lesser crime. The trial court did give instructions to the jury pertinent to third-degree assault, as if it were an included, and not a separate, offense. After the instructions were read to the jury, and upon the state's motion, made in the absence of the jury and before the final argument of counsel, the court decided to withdraw all reference to the lesser crime from the instructions. The jury was recalled and reinstructed in accordance with that change. No exception was taken by defendant to the instructions as finally given. In fact, he proposed an instruction that the only offense charged and which the jury could consider was assault in the second degree. Upon this state of the record, the instructions, as given, became the law of the case, and no error assigned to them can be considered. State v. Norman, 1951, 39 Wash.2d 575, 237 P.2d 194.

Defendant further assigns error upon the admission of the 30-40 Krag rifle in evidence, contending that it was obtained by a police officer by an illegal search of defendant's home, and, further, that its admission in evidence compelled defendant to give evidence against himself. Defendant made these objections during the trial, rather than by a motion to suppress before trial, because he claimed he had no knowledge that the police had the rifle until it was produced in court. Before the production of the rifle, a written statement made...