STATE v. HUMPHRIES

DORE, J.

Defendant 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 call seeking to locate defendant Humphries 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 woman 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. 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 also 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 arrest 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 as 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 which he is charged. State v. Donofrio, 141 Wn. 132, 250 P. 951 (1926); State v. Young, 22 Wn. 273, 60 P. 650 (1900).

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 be reasonable and proportioned to the injury attempted upon the party sought to be arrested. State v. Rousseau, 40 Wn.2d 92, 241 P.2d 447 (1952); Kennewick v. Keller, 11 Wn.App. 777, 525 P.2d 267 (1974). In a prosecution for assaulting an officer, it is a question for the jury under all the circumstances whether unnecessary force has been used in resisting arrest. State v. Rousseau, supra.

If the officers' actions were unlawful, Humphries could not be convicted of third-degree assault which requires the intent to prevent or resist lawful apprehension 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 force 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.

[1] At trial and over objection the prosecutor in her final argument characterized spitting as an assault.

State v. Garcia, 20 Wn.App. 401, 403-04, 579 P.2d 1034 (1978).

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:

United States v. Frizzi, 491 F.2d 1231, 1232 (1st Cir.1974).

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 give four proposed instructions concerning this theory.

[2] As stated in State v. Long, 19 Wn.App. 900, 902, 578 P.2d 871 (1978):

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, 13 Wn.App. 293, 535 P.2d 847 (1975); State v. Crudup, 11 Wn.App. 583, 524 P.2d 479 (1974). The court may supplement statutory language by an explanatory instruction but such an instruction is unnecessary if the statutory language is reasonably clear and not misleading to persons of ordinary intelligence. State v. Johnson, 7 Wn.App. 527, 500 P.2d 788 (1972), adopted 82 Wn.2d 156, 508 P.2d 1028 (1973).

The term "break open" as used in RCW 10.31.040, means simply entry without permission. State v. Miller, 7 Wn.App. 414, 499 P.2d 241 (1972). Although an instruction explaining the special meaning of "break open" could have been given in this case, we find no reversible error because none of Humphries' proposed instructions properly supplemented the court's instruction No. 6. As to whether it was error not to give the defense's proposed instructions, we will consider them individually.

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, 15 Wn.App. 446, 550 P.2d 17 (1976); State v. Mayner, 4 Wn.App. 549, 483 P.2d 151 (1971).

Humphries admits that the second sentence, using the term "force," is not 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.

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. Lyskoski, 47 Wn.2d 102, 287 P.2d 114 (1955); State v. Hill, 10 Wn.App. 851, 520 P.2d 946 (1974). Whether words used in an instruction require definition is necessarily a matter of judgment of the trial judge. Seattle v. Richard Bockman Land Corp., 8 Wn.App. 214, 505 P.2d 168 (1973). The word "obstructing" is commonly understood; Humphries' proposed instruction would have only compounded the problem by reusing "obstruct" in the definition.

[3] 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:

State v. Dunning, 8 Wn.App. 340, 342, 506 P.2d 321 (1973).

The case of State v. Wanrow, 88 Wn.2d 221, 559 P.2d 548 (1977), and cases cited therein, upon which Humphries bases his proposed instruction, involved a claim of justifiable homicide under RCW 9A.16.050. The proposed instruction was inapposite and the court was not required to give it. State v. Mriglot, supra; State v. Mayner, supra.

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.