State v. Thompson, 44302
| Decision Date | 19 May 1977 |
| Docket Number | No. 44302,44302 |
| Parties | The STATE of Washington, Respondent, v. Ernest Eugene THOMPSON, Petitioner. |
| Court | Washington Supreme Court |
Peter H. Arkison, Bellingham, for petitioner.
David S. McEachran, Whatcom County Prosecuting Atty., James M. Doran, Deputy Pros. Atty., Bellingham, for respondent.
In a jury trial, the petitioner was found guilty of the crimes of assault in the second degree and robbery. By special verdict, he was found to have been armed with a deadly weapon when the offenses were committed. By unpublished opinion, the Court of Appeals, Division One, affirmed the judgment entered on the verdicts. State v. Thompson, 14 Wash.App. 1032 (1976). We granted a petition for review to consider a question upon which opinions rendered in Divisions One and Two of the Court of Appeals are in conflict. That question concerns the proper interpretation to be placed upon RCW 9.95.040, which provides that the Board of Prison Terms and Paroles shall fix minimum sentences and places certain limitations upon its exercise of discretion in doing so.
Two of these limitations, contained in subsections (1) and (2), prescribe minimum sentences for persons who were armed with a deadly weapon at the time of the commission of the offense. Deadly weapon is defined in RCW 9.95.040 as follows:
The words 'deadly weapon,' as used in this section include, but are not limited to, any instrument known as a blackjack, sling shot, billy, sand club, sandbag, metal knuckles, any dirk, dagger, pistol, revolver, or any other firearm, any knife having a blade longer than three inches, any razor with an unguarded blade, and any metal pipe or bar used or intended to be used as a club, any explosive, and any weapon containing poisonous or injurious gas.
Divisions One and Two of the Court of Appeals have had occasion to consider whether, under this statute, a knife having a blade 3 inches or less in length can be found to be a deadly weapon. That question has not previously come before this court.
In State v. Williams, 3 Wash.App. 336, 475 P.2d 131 (1970), Division Two, an assault case in which a tavern operator received a superficial wound when stabbed in the back by a patron, the evidence tended to show that the knife used by the defendant was 3 inches or less in length. Pursuant to RCW 9.95.015, the court submitted a special verdict to the jury on the use of a deadly weapon. The jury found that such a weapon was used. Reversing the special verdict, the court held, at page 340, 475 P.2d at page 134, that the words "include, but are not limited to" were not intended to apply to the phrase "any knife having a blade longer than three inches" and that they were intended to permit a finding that an instrument used in the commission of a crime was a deadly weapon only if it was described in the section or was a different type of instrument. The court supported its interpretation by invoking the rule that criminal statutes are generally to be construed strictly against the state and in favor of the accused.
Division One, on the other hand, has held in a series of cases that, under the statute, the question whether a knife having a blade 3 inches or less in length is a deadly weapon depends upon the circumstances and is a fact question to be decided by the jury. State v. Sorenson, 6 Wash.App. 269, 492 P.2d 233 (1972); State v. Rolax, 7 Wash.App. 937, 503 P.2d 1093 (1972); State v. Braun, 11 Wash.App. 882, 526 P.2d 1230 (1974); and the case at bar.
In State v. Sorenson, supra at 273, 492 P.2d at 236, the court said:
By statutory definition, a 'knife having a blade longer than three inches' is a deadly weapon as a matter of law. But whether a knife with a blade of less than 3 inches is a Deadly weapon is a question of fact.
The character of an implement as a deadly weapon is determined by its capacity to inflict death or injury and its use as a deadly weapon by the surrounding circumstances, such as the intent and present ability of the user, the degree of force, the part of the body to which it was applied and the physical injuries inflicted.
Citing People v. Fisher, 234 Cal.App.2d 189, 193, 44 Cal.Rptr. 302 (1965).
We think that Division One has read the statute correctly. It was evidently the legislative intent that the statute should apply to all persons armed with a deadly weapon--that is, one capable of producing death--at the time of the commission of the offense. It listed certain instruments which it found to be so inherently dangerous that they should be termed 'deadly' regardless of the circumstances of their use. It manifested no intent that any weapon which is in fact deadly should be excluded.
It is not denied that a knife having a blade 3 inches or less in length can be capable of producing death and is in fact likely to produce death if strategically used. If the interpretation contended for by the petitioner and adopted by Division Two were correct, a person who actually committed murder with a knife under 3 inches in length would be exempt from the provisions of RCW 9.95.040. The same would be true of a person who strangled his victim by exerting pressure with a metal pipe or bar, rather than using it as a club. Such an anomalous result cannot have been intended and is not invited by the language used.
We do not find the statute ambiguous. Consequently, the rule that criminal statutes are to be construed in favor of the defendant and the maxims expressio unius est exclusio alterious, and ejusdem generis do not apply.
It is the general rule that a pocketknife may be a deadly weapon, depending on the circumstances of its use. See United States v. Enos, 453 F.2d 342 (9th Cir. 1972); De Witt v. State, 58 Okl.Cr. 261, 52 P.2d 88 (1935); Williams v. State, 477 S.W.2d 24 (Tex.Cr.App.1972); 11 Words and Phrases, Deadly Weapon, 206, 216--19 (1971), 1976 Supp., 11, 12.
Here, the evidence showed that the defendant held an open pocketknife, with a blade between 2 and 3...
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State v. Estes
...readily produce death." RCW 9.94A.825. Any knife with a blade longer than three inches is a deadly weapon. Id. ; State v. Thompson , 88 Wash.2d 546, 548, 564 P.2d 323 (1977).¶26 For purposes of evaluating defense counsel's performance, it is also important to know that second degree assault......
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