42 Wash. 1 | Wash. | 1906
— The appellant was informed against for the crime of assault with a deadly weapon with intent to inflict upon the person of another a bodily injury. On the trial the jury found him guilty of a simple assault, and from the judgment entered against him thereon he appeals.
The first contention made by the appellant is thScifc the evidence is insufficient to sustain the verdict; the precise contention being that the facts shown do not constitute an assault. Erom the record it appears that, on the day named in the information, the prosecuting witness and the appellant met on the streets in the city of Ellensburg, and engaged in a personal altercation, to stop which the city marshall took the prosecuting witness into custody. The appellant thereupon went to the place where his belongings were placed, and procured a revolver and announced his intention to shoot the prosecuting witness. He then proceeded to the place where the prosecuting witness had been taken by the marshall, and, on seeing him, made an exclamation to the effect that he would put him out of his misery, and at the same time advanced towards him proceeding to draw the re
An assault is defined by the code to be an attempt in a rude, insolent and angry manner unlawfully to touch, strike, beat, or wound another person, coupled with a present ability to carry such attempt into execution. "While it is' true that under this definition of an assault, as under the common law definition of that offense, there must be some physical effort to carry into execution the violence menaced before it can be said an assault has been committed, it is also true that the question does not depend upon the degree of effort put forth, nor upon how far the defendant had gone towards the accomplishment of his purpose. The line between violence menaced, and violence actually begun may be a narrow one, yet when it is apparent that the defendant’s acts if not stopped or diverted will lead to the corporal hurt of another, the execution of the purpose has begun, and there is a sufficient attempt to satisfy the definition of the statute. Here it seems to us clear that- the acts of the defendant had proceeded ber yond mere menaces. He5 not only made threats of violence, but he advanced towards the person threatened, proceeded to draw his revolver, and ceased only from his design when compelled to cease by the interference of third persons. This was at least an apparent attempt to carry into execution the violence menaced; and the question of the defendant’s guilt or innocence was properly submitted to the jury.
When the case was called for trial, it was discovered that the information was missing. After search it was believed to be irretrievably lost, whereupon the court permitted another information to be filed in the place of the missing ona This last information was given a new case number‘by the clerk of the court, the defendant was required to plead anew thereto, and the case proceeded as if a new proceeding
The court permitted the state to show that the appellant had stated, when speaking of the alleged assault, on the next day after its occurrence, that “he mighty near killed George Simpson” (Simpson being the prosecuting witness). It was objected to this in the court below that it was immaterial and did not tend to prove any of the issues in the case, and this contention is made in this court. The statement was properly admitted. One of the issues in the ease was whether the acts of the appellant was violence only menaced, or violence actually begun, and to determine this the purpose of the appellant at the time the alleged assault was made was a material inquiry. This evidence tended to show the appellant’s purpose at that time, and was admissible for that reason.
Mount, C. J., Hadley, Root, Gbow2 and Dunbab, JJ., concur.