65 Wn.2d 373, THE STATE OF WASHINGTON, Respondent, v. VERNON MITCHELL, Appellant

[No. 37329. Department Two.      Supreme Court      December 10, 1964.]

THE STATE OF WASHINGTON, Respondent, v. VERNON
                     MITCHELL, Appellant.*

[1] Assault - Criminal Liability - Intent to Kill - Proof. The specific intent to kill in first-degree assault cases is to be gathered from all of the circumstances of the case, of which the infliction of the wound is but one.

[2] Same - Criminal Liability - Intent to Kill - Evidence. Evidence indicating, in a prosecution for first-degree assault, that shortly before the complaining witness was shot in the abdomen while standing on a dance floor the defendant had terminated a meretricious relationship with, and threatened the life of, the complaining witness, coupled with the manner and act of the shooting, sustained a jury finding of intent to kill.

[3] Same - Criminal Liability - Intoxication. Where a defendant charged with first-degree assault contended that at the time he shot the complaining witness he was too intoxicated to form an intent to kill, the question of the degree and effect of his intoxication upon the formation of the requisite intent became an issue for the jury (RCW 9.01.114).

Appeal from a judgment of the Superior Court for King County, No. 39048, Henry W. Cramer, J., entered October 11, 1963. Affirmed.

Prosecution for first-degree assault. Defendant appeals from a conviction and sentence.

Richard E. Kane (of Kadish & Kane), f(;r appellant.

Charles O. Carroll and William L. Kinzel, for respondent.

PER CURIAM. -

At about 3 a.m., on March 16, 1963, in the Birdland dance club in Seattle, Washington, Marilyn Van Ausdell was wounded in the abdomen with a small caliber pistol. Her former boy friend, defendant Vernon Mitchell, was accused of the shooting. He was charged, tried, and convicted of the crime of assault in the first degree. He appeals.

The sole issue raised upon the appeal is the sufficiency of the evidence to sustain the conviction. In this respect,


* Reported in 397 P. (2d) 417.

[1] See Am. Jur. (2d), Assault and Battery 92.

 374    STATE v. MITCHELL [65 Wn. (2d)

defendant contends the proof fails to establish the essential element of an intent to kill, because (a) there is no evidence, apart from the act of shooting, from which the jury could infer the intent to kill, and (b) the evidence demonstrates that defendant was, at the time of the shooting, too intoxicated to form the requisite intent.

We have carefully reviewed the statement of facts and must disagree with defendant.

[l, 2] The specific intent to kill in first-degree assault cases is to be gathered from all of the circumstances of the case, of which the infliction of the wound is but one. State v. Davis, 72 Wash. 261, 130 Pac. 95 (1913). In the instant case, the evidence indicates, together with other circumstances, that the defendant and the complaining witness had, shortly before the incident at Birdland, terminated a meretricious relationship following which the defendant had threatened the life of the complaining witness. This evidence, coupled with the manner and act of the shooting, sustains the jury's finding of intent.

[3] The evidence further indicates that, although defendant had consumed a substantial amount of alcohol, he was able to move about and around the various areas of the dance club and to aim and fire the weapon involved. The question of the degree and effect of his intoxication upon the formation of an intent to kill clearly became an issue for the jury under the provisions of RCW 9.01.114. State v. Jensen, 194 Wash. 515, 78 P. (2d) 600 (1938).

Judgment affirmed.