State v. Stewart

• Decision Date: 02 May 1968
• Docket Number: No. 39433,39433
• Citation: 440 P.2d 815,73 Wn.2d 701
• Court: Washington Supreme Court
• Parties: The STATE of Washington, Respondent, v. Shedrick STEWART, Appellant.

Page 701

73 Wn.2d 701

440 P.2d 815

The STATE of Washington, Respondent, v.Shedrick STEWART, Appellant.

No. 39433.

Supreme Court of Washington, Department 1.

May 2, 1968.

Hohlbein, Church, Sawyer & VanDerhoef, James D. Sawyer, Seattle, for appellant.

Charles O. Carroll, Pros.Atty., David A. Berner, Duputy Pros.Atty., Seattle, for respondent.

WEAVER, Judge.

Defendant, Shedrick Stewart, was charged and convicted of the crime of assault in the second degree upon Daniel Hart, Jr., and of the crime of murder in the second degree for killing Patricia Ann Jackson during his assault on Daniel Hart, Jr.The jury found that defendant was armed with a deadly weapon at the time the crimes were committed.

The charges spring from the following facts, which the jury was entitled to believe.

Defendant and his brother-in-law, Daniel Hart, Jr., came from Louisiana to work in Seattle.They found lodging with the Hudson Jackson family, whom defendant had known in Louisiana.After a week's stay, defendant and Hart rented an apartment a short distance from the Jackson home.It appears that defendant was paying the major portion of their expenses.

July 17, 1966, an altercation occurred between defendant and Hart over the latter's failure to pay his share of a large long-distance telephone bill.Hart testified that during the altercation defendant threatened to kill him.

As Hart drove away from the apartment in his automobile, defendant rushed to the apartment, secured a rifle, and aimed it at the car.No shot was fired.

Hart, having members of the Hudson Jackson family in his car, drove to their residence where they watched television.Hart and Mr. Jackson were seated in chairs facing the front door; the three Jackson daughters and a son were seated along the stairway, with Jackson's daughter, Patricia, seated on the landing.

At this point the evidence is conflicting.Shortly after the altercation at the apartment, defendant came to the Jackson home carrying a .22-caliber rifle wrapped in a pair of blue jeans.He testified that he knocked on the door and walked into the house.Other witnesses testified that he did not knock, but entered unannounced.

Defendant unwrapped the rifle from the blue jeans.As he pointed the rifle at Hart, who was about five feet away, the latter sprang to his own defense and pushed the rifle up and away.As it came down, the rifle was discharged.Patricia Jackson died as a result of this bullet which struck her.Mr. Jackson was not involved until after the shot was fired; he then helped Hart disarm the defendant.

Count 1 of the information is based upon RCW 9.11.020(4):

Every person who, under circumstances not amounting to assault in the first degree--

(4) Shall wilfully 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 penientiary for not more than ten years or by a fine of not more than one thousand dollars, or by both.

We note that the seven sections of the statute are in the alternative; each is a ground for assault in the second degree.Subsection (4), quotedsupra, is the only one applicable to the instant case.The crux of the crime is a 'wilful assault * * * with a weapon * * * likely to produce bodily harm.'Evidence that establishes (a) that the assault was willful and (b) that the instrument used was likely to produce bodily harm is sufficient to support the conclusion that the accused is guilty of assault in the second degree.It is the intentional or willful assault that constitutes the crime.This is succinctly stated in State v. Rush, 14 Wash.2d 138, 127 P.2d 411(1942):

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.

Defendant's first two assignments of error must be considered together.They are:

First: the court erred when it gave instruction No. 6:

If a person willfully assaults another with a weapon or other instrument or thing likely to produce bodily harm, he is guilty of the crime of assault in the second degree whether or not he entertained a design or intent to cause such bodily harm.The gist of the offense is the intentional attack with a weapon which might cause such harm, and whether or not the attacker intended or thought of the harm which might result is not material.

Second: the court erred when it refused to give requested instruction No. 1:

You are instructed that, to find the defendant Guilty of the Crime of Second Degree Assult (sic), you must find that there must be shown specific intent on the part of the defendant to commit Assult (sic).

The basis of defendant's objection to instruction No. 6 is that it withdraws from the jury's consideration a necessary element of the crime of second degree assault: specific intent.We do not agree.

The crucial word in the statute and in the instruction is 'wilfully.'Even appellate counsel(who did not try this case in the superior court), admits in his brief that 'had this instruction (No. 6, supra) defined 'willfully' it may have been proper. * * *'

Further definition was not necessary.In State v. Spino, 61 Wash.2d 246, 377 P.2d 868(1963), this court said:

The term 'wilfully' is not ambiguous.As used in criminal statutes, it means intentionally and designedly.

Prior decisions of this court support the definition set forth in Spino, supra.In State v. Vanderveer, 115 Wash. 184, 196 P. 650(1921), it is stated that 'An act done willfully is done Intentionally and designedly.'(Italics ours).In State v. Evans, 32 Wash.2d 278, 201 P.2d 513(1949)(a second degree assault case), the court pointed out that 'A willful act is one done intentionally, not accidentally.'

InstructionNo. 6 did not withdraw specific intent as a necessary element of the crime of second degree assault....