120 Wash. 345 | Wash. | 1922
— The defendant was charged by information with the crime of assault in the second degree. The trial resulted in a verdict of guilty. After motion for new trial was overruled, he was sentenced to the state penitentiary for a minimum period of two years, and thereafter appealed from the judgment. The facts necessary to the understanding of the questions to.be determined may be summarized as follows:
On the second day of December, 1920, and for some time prior thereto, the appellant resided in Chelan county, a short distance from the town of Leavenworth. In addition to himself, his family consisted of his wife and two young ladies, one of whom was a daughter. The sheriff of the county, believing that the appellant had intoxicating liquor in his home in violation of the law, regularly obtained a search warrant, and on the evening of the day above mentioned, together with two deputies, went to the home of appellant for the purpose of making a search. They arrived there a few minutes past nine o’clock in the evening, and in response to their rap at the door, the appellant appeared and was advised by the sheriff who he was and what
The charge is based upon subd. 4 of § 2414, Remington’s Comp. Stat., wMch reads as follows:
“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 tMng likely to produce bodily harm; . . . Shall be guilty of assault in the second degree and be punished by imprisonment in the state perntentiary for not more than ten years or by a fine of not more than $1,000, or by both.”
The first error assigned is that the court did not directly define, in instructing the jury, the.term “wil
It is next claimed that the court erred in refusing to submit to the jury the question as to whether the appellant was guilty of the crime of assault in the third degree. It may be admitted that, if there was any evidence which would justify the jury in finding a verdict of guilty of assault in the third degree, the instruction should have been given. The evidence, showed that the appellant was guilty' of assault in the second degree, as defined by the provision of the statute above quoted, or he was not guilty of any offense. The evidence brings the cause squarely within the statute under which the prosecution was had. It was not error to refuse to submit to the jury the question whether the appellant was guilty of assault in the third degree when there was no evidence which would sustain the conviction of that crime.
The next question is whether the court erred in defining what constituted an assault under the statute.
“If, within shooting distance, one menacingly points at another with a gun, apparently loaded yet not in fact, he commits an assault the same as if it were loaded. There must be some power, actual or apparent, of doing bodily harm; but apparent power is sufficient.”
In a further discussion the author heartily disapproves of the rule adopted in some jurisdictions that
The next assignment of error relates to the manner in which the appellant claims a search for intoxicating liquor should be made. It is his contention that it should be made in a reasonable manner. That it should be so made, in view of all the attendant facts and circumstances, may be admitted. In this case no search was made at all because the appellant prevented it. There is no evidence that the officers proposed to make the search in any other than a reasonable manner, and when told that the wife' of the appellant was ill, they offered to make the search without entering the room where she was and without disturbing her. The appellant, as he testified, was willing that the search should be made on the following day, or any other time, but would not permit it to be made that night.
Some question is made with reference to the regularity of the search warrant, but there is no merit in the appellant’s position in this. The warrant was issued upon the affidavit of the sheriff which stated, as the appellant says in Ms brief, in positive terms, that intoxicating liquor was being bought, sold, manufactured and given away at the home of the appellant. Upon the trial, on cross-examination, the sheriff testified that he did not know positively that there was any liquor in the house, but that does not militate against the regularity or validity of the warrant.
Finally, it is contended that the penalty imposed was so excessive as to constitute an abuse of discretion on the part of the trial court. The court fixed the sentence at a minimum of two years, and the statute fixes the maximum at not more than ten years.. Under the repeated holdings of this court, there was no abuse of discretion in imposing the sentence complained of.
The judgment will be affirmed.
Parker, O. J.', Mackintosh, Holcomb, and Hovey, JJ., concur.