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.
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?
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 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.
ISSUE 1: Lesser included offense.
Humphries was convicted of simple assault, a lesser included offense of third-degree assault.
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
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.
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.
Initially Humphries contends that some or all of his proposed instructions were necessary to explain the court's instruction No. 6.
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'
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.
ANDERSEN, A.C.J., and JAMES, J., concur.
Reconsideration denied November 7, 1978.
"Assault in the third degree. (1) Every person who, under circumstances not amounting to assault in either the first or second degree, shall assault another with intent to prevent or resist the execution of any lawful process or mandate of any court officer, or the lawful apprehension or detention of himself or another person shall be guilty of assault in the third degree."
RCW 9A.36.040 provides:
"Simple assault. (1) Every person who shall commit an assault or an assault and battery not amounting to assault in either the first, second, or third degree shall be guilty of simple assault."
INSTRUCTION No. 6
"To make an arrest in criminal actions, the officer may break open any outer or inner door, or windows of a dwelling house or other building, or any other inclosure, if, after notice of his office and purpose he be refused admittance."
INSTRUCTION No. 12
"The use, attempt, or offer to use force upon or toward another person is lawful whenever used by a person about to be injured, or by another lawfully aiding him, in preventing an unlawful arrest or attempting to prevent an offense against his person and is not more than shall be necessary."