— Dеfendant was charged by information with third-degree assault. A jury convicted him of the lesser included offense of simple assault. He appeals. We affirm.
Issues
Issue 1: Was there substantial evidence to support the jury's verdict, finding defendant guilty of the offense of simple assault?
Issue 2: Did the court err in declining to give certain instructions proposed by the defense?
Facts
On the evening of January 17, 1977, Seattle police officers responded to a radio сall seeking to locate defendant Hum-phries concerning some traffic and robbery warrants. The officers went to an address they had been given, and upon arriving knocked on the door, and entered when a womаn opened it. Officer Burtis testified that the woman opened the door quite wide and he walked in. The woman controverted the officer's statement and testified that the officers pushed the door open and elbowed their way in.
A birthday party was in progress and numerous people were present. When the officers asked for Humphries, an argument broke out concerning their presence and the apparent lack of a warrant. Humphries appeared and joined the argument. The officers testified that during the argument Humphries spat twice in Officer Burtis' face. *407 Burtis then informed Humphries that he was under arrest for obstructing. A fight ensued as Humphries pushed the officer out the open front door into the yard while Burtis simultaneously was attempting to consummate the arrest. As the fight ensued, Humphries was able to break free and ran back into the house. A few moments later Burtis alsо went back into the house. Humphries retreated onto the front staircase, with two women standing at the bottom of the stairway shielding him.
Burtis felt that Humphries was not going to escape so he did not attempt to immediately arrеst him but waited for backup units for help. During this lull Humphries reached between the two women and struck Burtis on the jaw with his fist. Burtis, with the aid of other officers, then placed Humphries under, arrest.
Humphries' version of the altercation was that аs he stood on the staircase an officer reached to grab him and he knocked the officer's hand away. He stated that Officer Burtis then subdued him by choking him into submission.
Decision
Issue 1: Lesser included offense.
Humphries was convicted of simple assault, a lesser included offense of third-degree assault.
1
An instruction regarding a lesser included offense may be given when evidence is introduced which would warrant the jury in believing the accused guilty only of a lesser degree of the offense with whiсh he is charged.
State v. Donofrio,
Defendant argues that the court erroneously allowed the prosecutor to characterize spitting as an assault.
A person illegally arrested by an officer may resist that arrest; the force used in resisting an unlawful arrest must
*408
be reasonable and proportioned to the injury attempted upon the party sought to be arrested.
State v. Rousseau,
If the officers' actions were unlawful, Humphries could not be convicted of third-degree assault which requires the intent to prevent or resist lawful apрrehension or detention. RCW 9A.36.030(1). But even if the arrest was unlawful, there remained a jury question whether Humphries used unnecessary or excessive force in resisting the officers. State v. Rousseau, supra. The jury could have found that Humphries' use of physical fоrce in attempting to remove Officer Burtis from the premises was unreasonable because the officers had made no effort to place Humphries under physical restraint at that point. The jury could also have found that Humphries' punching Officer Burtis in the jaw was a second episode constituting unnecessary force because the original fight between them had twice abated and was dormant, if not completely terminated, at that time.
At trial and over objection the prosecutor in her final argument characterized spitting as an assault.
An assault is an attempt to commit a battery, which is an unlawful touching; a touching may be unlawful because it was neither legally consented to nor otherwise privileged, and was either harmful or offensive. See R. Perkins, Criminal Law, ch. 2, § 2.A.1, at 107-08 (2d ed. 1969); 6 Am. Jur. 2d Assault and Battery § 5, 10 (1963).
*409
State v. Garcia,
A battery is a consummated assault. See 6A C.J.S. Assault and Battery § 2 (1975). Spitting may constitute a battery. R. Perkins, Criminal Law 108 n.14 (2d ed. 1969), citing Regina v. Cotesworth, 6 Mod. 172, 87 Eng. Rep. 928 (1705). In applying the statute governing assault on federal officers, 18 U.S.C. § 111, it was said:
We do not think it could be ruled that spitting in the fаce is not forcible assault, or, more exactly, a battery falling within the statutory description . . . Although minor, it is an application of force to the body of the victim, a bodily contact intentionally highly offensive. Alcorn v. Mitсhell, 1872,63 Ill. 553 ; Witsett v. Ransom, 1883,79 Mo. 258 , 260.
United States v. Frizzi,
Under the facts and circumstances of this case, we find no error in the prosecutor characterizing "spitting" as an assault.
We hold there was substantial evidence in the subject case on which the jury could find the defendant Humphries guilty of simple assault.
Issue 2: Proposed defense instructions.
Humphries' theory of the case was that the police unlawfully entered his mother's house and that his use of force in resisting his subsequent arrest was justified. He assigns error to the court's failure to givе four proposed instructions concerning this theory.
As stated in
State v. Long,
The test of sufficiency of instructions given on a party's theory of the case is that (1) they permit the party to argue his or her theory of the case; (2) they are not misleading; and (3) when read as a whole they properly inform the trier of the fact on the applicable law. State v. Dana,73 Wn.2d 533 , 537,439 P.2d 403 *410 (1968); State v. Lane,4 Wn. App. 745 , 747,484 P.2d 432 (1971). It is discretionary with the trial court as to how many instructions are necessary to fairly present a litigant's theories. Anderson v. Red & White Constr. Co., 4 Wn. App. 534, 538,483 P.2d 124 (1971).
Initially Humphries contends that some or all of his proposed instructions were necessary to explain the court's instruction No. 6.
2
Generally, an instruction that follows the words of a statute is proper.
State v. Whittier,
The term "break oрen" as used in RCW 10.31.040, means simply entry without permission.
State v. Miller,
Proposed Defense Instruction No. 21
It is the defendant's theory of the case that the police entered his mother's house unlawfully and that they acted unlawfully in arresting him for obstructing. He, therefore, cannot be punished for resisting unlawful acts by the police.
If, in your consideration of all of the evidencе, the evidence supporting the defendant's theory of the case creates in your mind a reasonable doubt as to the *411 defendant's guilt, then you must return a verdict of not guilty.
This instruction is not an accurate statement of the law— one
can
be punished for resisting unlawful acts of the police if one used unreasonable and/or excessive force.
State v. Rousseau, supra.
The court is not required to give an instruction which is erroneous in any respect.
State v. Mriglot,
Proposed Defense Instruction No. 24
The poliсe may not enter a home to arrest someone on a warrant unless they have probable cause to believe that the person is on the premises. They may not force their way into a house unless they have requested and been refused admittance and unless they have a search warrant or other lawful reason to enter.
An entry into a building is a search and citizens are protected against unreasonable searches by the Washington and United States Constitutions. An entry into a building without a search warrant, or existence of emergency circumstances, is unconstitutional.
Humphries admits that the second sentence, using the term "force," is nоt an accurate statement of the law set forth in State v. Miller, supra. It was, therefore, properly refused. State v. Mriglot, supra; State v. Mayner, supra.
Proposed Defense Instruction No. 25
To obstruct a police officer means intentionally to resist, delay, or obstruct a person the defendant knows to be a police officer when that оfficer is acting lawfully in a governmental function.
The trial court in a criminal case is required to define technical words and expressions, but not words and expressions which are of common understanding.
State v. Lys-koski,
Proposed Defense Instruction No. 28
In deciding whеther the defendant acted in self defense or in defense of his family, you should consider all of the circumstances as they were known to the defendant at the time he acted. You should place yourselves in the рlace of the defendant, try to understand his point of view at the time of the incident, and view the conduct of Officer Burtis and the other officers with all their pertinent sidelights as the defendant was warranted in viewing it.
The question is the reasonableness of the defendant's perception and action, and to determine this you should stand as nearly as practicable in the shoes of the defendant, and from this point of view determine the charаcter of the act.
Humphries' defense was the lawful use of force. The court instructed the jury on this theory in the language of RCW 9A.16.020(3), 3 and the defendant did not except to this instruction. The correct rule is:
Although a person is not еntitled to use all the force which he believes necessary to repel an attack, he may use that degree of force necessary to protect himself which a reasonably prudent man would have used under the conditions appearing to him at that time.
State v. Dunning,
The case of
State v. Wanrow,
*413 In summary, we find no reversible error by the trial court's refusal to submit to the jury the defense's proposed instructions Nos. 21, 24, 25 and 28.
We affirm.
Andersen, A.C.J., and James, J., concur.
Reconsideration denied November 7, 1978.
Notes
RCW 9A.36.030 provides:
"Assault in the third degree. (1) Every person who, under circumstances not amounting to assault in either the first or second degree, shall assault another with intent to prevent or resist the execution of any lawful process or mandate of *408 any court officer, or the lawful apprehension or detention of himself or another person shall be guilty of assault in the third degree."
RCW 9A.36.040 provides:
"Simple assault. (1) Every person who shall commit an assault or an assault' and battery not amounting to assault in either the first, second, or third degree shall be guilty of simple assault."
Instruction No. 6
"To make аn arrest in criminal actions, the officer may break open any outer or inner door, or windows of a dwelling house or other building, or any other inclosure, if, after notice of his office and purpose he be refusеd admittance."
Instruction No. 12
"The use, attempt, or offer to use force upon or toward another person is lawful whenever used by a person about to be injured, or by another lawfully aiding him, in preventing an unlawful arrest or attempting to prevent an offense against his person and is not more than shall be necessary."