State v. Norby ( 1978 )

Farris, C.J.

(dissenting) — I dissent. A simple assault is an assault or assault and battery not amounting to assault in the first, second or third degree. RCW 9A.36.040.

A lesser included offense instruction is proper when the evidence would warrant a jury finding that the accused is only guilty of a lower degree of the offense with which he is charged. The undisputed evidence is that Norby struck the victim with a beer bottle. A simple assault instruction was not proper under these facts. Norby was guilty of second-degree assault under RCW 9A.36.020(l)(e):

(1) Every person who, under circumstances not amounting to assault in the first degree shall be guilty of assault in the second degree when he:

(e) With criminal negligence, shall cause physical injury to another person by means of a weapon or other instrument or thing likely to produce bodily harm.

That the prosecutor (perhaps erroneously) charged Norby under subsection (l)(b), which allows intoxication as a defense, does not alter the facts of the assault. Under the facts, Norby was guilty of second-degree assault or not guilty at all. I would affirm.

Reconsideration denied August 22,1978.