State v. Warwick

• Court: Washington Supreme Court
• Writing for the Court: MAIN, J.
• Citation: State v. Warwick, 105 Wash. 634, 178 P. 977 (Wash. 1919)
• Decision Date: 28 February 1919
• Docket Number: 15007.
• Parties: STATE v. WARWICK.

178 P. 977

105 Wash. 634

STATE v. WARWICK.

No. 15007.

Supreme Court of Washington

February 28, 1919

Department 1.

Appeal from Superior Court, King County; J. I. Ronald, Judge.

Charles Warwick was convicted of assault in the third degree, and appeals. Reversed and remanded, with instructions to grant a new trial.

Thomas R. Horner, of Seattle, for appellant.

Alfred H. Lundin and Joseph A. Barto, both of Seattle, for the State.

MAIN J.

The defendant in this case was charged with the crime of assault in the third degree. The trial resulted in a verdict of guilty. From the judgment entered upon the verdict the defendant appeals.

On July 21, 1917, and for some time prior thereto, the appellant was and had been living at the Hotel Russell, in Seattle. On the night of that day the appellant returned to his room at about 12 o'clock, and found therein the complaining witness and a woman. The complaining witness he had not known prior to that time, but the woman apparently was not a stranger to him. They had entered the room without permission from the appellant. The conversation which took place in the room need not be here detailed, further than to say that it was not of an ill nature. After a few minutes the appellant left the room to go to another part of the building, and the complaining witness left, apparently to leave the building. The room was on the second floor of the hotel, and was reached by a stairway. A little later the complaining witness and the appellant met near the head of the stairs. The appellant testifies that he said to the complaining witness 'I thought you had gone home,' and that thereupon the complaining witness applied to him a vile epithet and struck at him, and knocked off his glasses, and 'when he went to strike again I threw up my left arm, and I think it struck his right arm. He went down the stairs, and his hat fell off. I ran down after him, and picked up his hat as I went.' The complaining witness testified that when they met at the head of the stairs the defendant applied to him a vile epithet and told him to 'get down the stairs,' and he further testified:

'When he came down the stairs around the banister, I went down the stairs. When I got to the bottom, the son was there and hauled off and smashed me in the face here, and cut my lip all open. When I got to the street entrance, the doctor [appellant] overtook me, and had some big heavy instrument or something, and came down on may head.'- It was for the assault that occurred on this occasion that the appellant was tried and convicted. The theory of the defense was that the complaining witness had not been struck or assaulted by the appellant. The theory upon which the case was prosecuted was that the appellant had struck the complaining witness, at the foot of the stairs near the street entrance to the hotel, after he had been first struck in the face by the son. The case was submitted to the jury by the instructions of the trial court, upon the theory that the appellant had used force upon the complaining witness, and that the question to be determined was whether such force was justified. After defining the crime of assault, the court in the instructions states:

'The defendant admits having used force' on the complaining witness, but claims 'that such force as he used was not unlawful, but was in the lawful defense of his own person, and to protect himself against an unlawful assault.'

Throught the...