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State v Jimerson
Ct. of App. WA 1980
Author:- Sam Biers
Facts: Jimerson was driving his car with some friends. The car spun out on some ice near two off duty policemen. The police went over and suggested that Jimerson drive more carefully. Jimerson returned with some comments, Jimerson got out of the car ready to fight. One of the policemen identified himself and forced Jimerson back inside by pushing him by the hair. Jimerson drove away. He turned around and came at the police. One officer shot at the car. The car swerved but missed hitting anyone. Jimerson drove away as he filed a report claiming that he was only trying to splash slush on them he was charged with first degree assault. An instruction for a lesser charge second degree was read to the jury.
Issue: Whether the jury should have been instructed on simple assault?
Holding: Yes
Procedure: Jury convicted two counts of second degree assault, Reversed.
Rule: An assault or an assault and battery not amounting to first, second, or third degree shall be guilty of simple assault. Simple assault lacks the intent to injure (2)or kill(1) or to prevent or resist officer(3).
Court Rationale: The question of whether the defendant had the necessary intent to commit second degree is an issue reserved for the jury. If the jury was not given proper instruction on the elements of simple assault they were not properly instructed. Def. is entitled to instructions where evidence was provided which would justify a reasonable person in concluding that the lesser included offense had been committed.