State v. Moore

McGovern, J.

Defendant appeals from a judgment and sentence entered upon a jury verdict finding him guilty of assault in the second degree. The jury made a special finding that he was armed with a deadly weapon at the time of the offense.

February 4, 1967, defendant twice stabbed his victim, George Brooks. Using a butcher knife, he stabbed him in the abdomen and through the left hand. Witnesses for the state were the victim and an eyewitness who both testified to the event.

Defendant did not deny the assault but claimed that he had been drinking heavily that afternoon, had blacked out and had no recollection of what occurred in the apartment. He said he knew nothing about the incident or of Brooks’ injury -until he was told about it the next morning.

He further stated that he was 43 years of age with a 20-year history of problems brought on by his drinking. He said that he was hospitalized for chronic alcoholism in 1954, in 1958 and again in 1964; that he belonged to Alcoholics Anonymous for a period of time; that he had been jailed in excess of 30 times for drunkenness; and that he often blacked out when drinking. He also testified that he worked on the day in question, drank heavily after work, took a cab to his apartment, fell asleep in the cab, remembered the cab driver awakening him, but did not remember whether he paid the cab fare. He said that he had no recollection of what occurred during the remainder of the day.

His appeal is predicated upon a single assignment of error. He contends that instruction No. 8 as given by the court contained an incorrect statement of the law because it assumed that his act of knifing the victim was an intentional and voluntary act, the very thing he was trying to refute.

The pertinent part of that instruction reads as follows: “The court instructs the jury that the law presumes that every man intends the natural and probable consequences of his own acts.” Because the court failed to qualify the word “acts” as necessarily “voluntary and intentional,” defendant argues that the statement constituted a comment on the evidence in violation of Const, art. 4, § 16 and that he is therefore entitled to a new trial. The basis of his argument rests on our opinion in State v. Peterson, 73 Wn.2d 303, 438 P.2d 183 (1968) where the facts were somewhat similar. There the defendant was verbally and physically abused while attending a party. He left the party and later returned with a drawn pistol. After the ensuing argument had terminated, defendant’s pistol discharged, and the victim was injured. Peterson contended that he was innocent of the assault charge because the pistol discharged accidentally. While it was clear that Peterson possessed the ability to form the required intent, the question was whether or not he had done so. We reversed because the instructions as given permitted a conviction without the jury finding that the assault was the result of the defendant’s voluntary act and deed.

The instructions here did not permit such a verdict. The cases are, therefore, distinguishable. Here the trial court’s third instruction correctly advised the jury of the elements of second-degree assault that had to be proved in order to convict. Included was proof that “the defendant did willfully and unlawfully assault one George Brooks.” And the term “willfully” was defined as “intentionally and purposely and not accidentally.”

More similar to the case at hand are State v. Alvis, 70 Wn.2d 969, 425 P.2d 924 (1967) and State v. Willis, 67 Wn.2d 681, 409 P.2d 669 (1966).

In Alvis, the identical language excepted to here was included in an instruction that every man intends the natural and probable consequences of his own acts. No prejudicial error was found. There the defendant, armed with a gun, waited on the front porch of his home. When his wife appeared in the company of a Mr. Stone, defendant pointed the gun at her. Mr. Stone started toward the defendant, the gun discharged, and Mr. Stone was shot in the leg. Defendant alleged that he was under the influence of drugs at the time. There was no evidence of what the drugs were, what their effect might have been, or that they in any way affected the intellectual processes of the defendant. In the light of this evidence, or lack of it, the instruction did not become a critical factor in the case, and we found that defendant had been accorded a fair trial in the light of all instructions given.

In Willis, the instruction excepted to was similar to that in the instant case, but was held not to be erroneous when considered in conjunction with other instructions given and in light of all the circumstances and evidence. The court held that, in the context of the case, the instruction had not prevented the defendant from having a fair trial.

Similarly, we find that the instructions as given here by the trial court were sufficiently clear and complete to the extent that defendant had a fair and constitutional jury trial.

We also note from the record that defendant’s trial counsel (different from appellate counsel) took exception to the questioned instruction solely on the basis that “if we start by only showing only [sic] one side of this intent, I think that this Instruction is too keyed.” He thus failed to point out with sufficient particularity the grounds of his exception and thus failed to preserve the claim of error. State v. Harris, 62 Wn.2d 858, 385 P.2d 18 (1963); State v. Lyskoski, 47 Wn.2d 102, 287 P.2d 114 (1955); and State v. Wilson, 38 Wn.2d 593, 231 P.2d 288 (1951).

For the reasons stated, we affirm.

Hunter, C. J., Hill, Weaver, Rosellini, Hamilton, Hale, and Neill, JJ., concur.