19 Wn.2d 700, THE STATE OF WASHINGTON, Respondent, v. LORENZO D. EMERSON, Appellant
[No. 29137. Department One. Supreme Court December 17, 1943.]
THE STATE OF WASHINGTON, Respondent, v. LORENZO D.
EMERSON, Appellant.«1»

In State v. Baxter, 16 Wn. (2d) 246, 132 P. (2d) 1022, we quoted with approval the following rule announced in State v. Wappenstein, 67 Wash. 502, 121 Pac. 989:

"`"It is difficult to formulate a general rule stating the extent to which appellate courts will pass upon the weight and sufficiency of evidence and reverse because of an insufficiency of evidence, but the general rule seems to be that where there is material evidence tending to prove defendant's guilt before the jury, and the trial court refuses to set their verdict aside, an appellate court will not reverse the action of both the trial court and the jury; that it will examine the record to see whether there is evidence proper to go to the jury, and upon which a verdict of guilt might reasonably be founded, and, being satisfied on that point, will refuse to interfere, whatever may be its own opinion of the weight or preponderance of the evidence. If, however, the verdict of the jury is altogether unsupported by any evidence whatever, or if it is against the evidence and every proper inference which is reasonably deducible therefrom, the judgment will be reversed by the appellate court."

[2] In the present case, Emil Laakko, the man claimed to have been assaulted by appellant, testified in substance as follows: That he was a member of the United States coast guard, stationed at South Bend, Washington; that, while he had seen appellant Emerson around South Bend, he first met him in the Olson club, in South Bend, about seven o'clock on the evening of January 9, 1943. The

704 STATE v. EMERSON. [Dec. 1943

witness further testified that, when he went into the Olson club on the date mentioned, appellant and a Mrs. Barber were sitting in a booth, and that he joined them, sitting on the opposite side of the table; that, while he was sitting there, Mrs. Barber got up, and appellant jumped up and knocked her down; that the witness then got up and pinned appellant's arms behind his back, to give Mrs. Barber a chance to get up; that at this time John Autio, the bartender, came around from behind the bar and told the witness to leave appellant a[one, that he would take care of him, and he did; that, when the witness pinned appellant's arms behind him, Mrs. Barber was on the floor, and it looked like appellant was going to strike her again; that, as appellant went out, he said to Laakko: "I will get you for that."

It further appears from Mr. Laakko's testimony that shortly after the above occurrence he left the Olson club for about a half hour, and then came back, standing at about the middle of the bar; that he did not see appellant when he (Laakko) first entered the club the second time, but later saw him standing at the far end of the bar. It further appears from the testimony that, as Mr. Laakko was standing at the bar drinking beer, appellant came up behind him. To use his own words:

"I stood there drinking beer and listening to some conversation going on, and the first thing I knew he was right up against me, against my back; I was facing the bar."

The testimony continues:

"Q. Show the jury what the defendant did, about coming up? A. His front went right up against me, against my back so I felt him pretty heavy, I felt his arm here (indicating) and when he came down this way (indicating) I imagine he came down, and shortly after that just like a thorn. Q. Did you feel anything at the time? A. Just like a sharp thorn. Q. In your side? A. Yes. Q. Then what happened to you - what did John Autio do, if anything?

A. He came around the bar and he took this fellow [appellant] out; and when he came back I had blood on my hand;

I felt the blood trickle down; and there was a hole in my

Dec. 1943] STATE v. EMERSON. 705

jumper. Q. What were you wearing that evening? A. I had a jumper. Q. Was the jumper cut? A. Yes. Q. What other clothing did you have inside? A. Just an undershirt. Q. Were they both cut? A. They were. Q. What did you say then and there at that time? A. I just said I was stabbed. Q. Were you bleeding much? A. Bleeding quite a bit. Q. What did Autio do? A. He took me in the back room and put on one of those adhesive plasters. Q. Were you still bleeding. A. Yes."

It further appears from the testimony of this witness that he continued to bleed and that he went to his boat and changed the bandage; that thereafter he went to Raymond, where sometime that evening he was treated by Dr. Nevitt; that, after he had been treated by Dr. Nevitt, apparently the witness continued to move around and the bleeding continued. He was later taken to the Raymond hospital, but, as the coast guard had a contract with the South Bend hospital, he was taken to the latter place, where, according to his testimony, he arrived about twelvethirty. Here he stayed until the following Tuesday morning, and was treated by Dr. Anderson, whom he continued to see for about three weeks. The witness testified he did not see anything in Emerson's hand.

John Autio, bartender at the Olson club the evening of January 9th, testified that he knew appellant. The witness was interrogated in part as follows: