# State v. Louie > Washington Supreme Court · April 7, 1966 · 68 Wash. 2d 304 URL: https://www.frixlaw.com/law-library/cases/9598866 ## Case - **Full name:** The State of Washington, Respondent, v. Vernon James Louie, Appellant - **Court:** Washington Supreme Court - **Decided:** April 7, 1966 - **Citations:** 68 Wash. 2d 304; 413 P.2d 7; 1966 Wash. LEXIS 738 - **Precedential status:** Published - **Opinion:** Dissent by Hunter - **Judges:** Hunter, Hamilton - **Cited by:** 64 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9598866 ## Opinion text Hunter, J. (dissenting) — I dissent. The key instruction to the jury, No. 13, defining the crime with which the defendant was charged, omitted one of the essential elements of the crime of burglary in the second degree. RCW 9.19-.020 provides: Every person who, with intent to commit some crime therein shall, under circumstances not amounting to burglary in the first degree, enter the dwelling house of another or break and enter, or, having committed a crime therein, shall break out of, any building or part thereof, or a room or other structure wherein any property is kept for use, sale or deposit, shall be guilty of burglary in the second degree and shall be punished by imprisonment in the state penitentiary for not more than fifteen years. (Italics mine.) Instruction No. 13 did not include the element requiring that the breaking and entering into a building, room or structure must be “wherein any property is kept for use, sale or deposit.” The instruction was prefaced with the statement: If you find from the evidence beyond a reasonable doubt all of the following alleged facts, .... It then listed all the elements of the crime of burglary in the second degree as provided in RCW 9.19.020, supra, with the exception of the above element of the crime. The instruction then stated: Then you must find the defendant, Vernon James Louie, guilty of Burglary in the Second Degree as charged in the information. The instruction was equivalent to directing the jury that it was not necessary for the state to prove an essential element of the crime of burglary in the second degree to find the defendant guilty of such a crime. In State v. Emmanuel, 42 Wn.2d 799, 820 , 259 P.2d 845 *317 (1953), quoting from Croft v. State, 117 Fla. 832 , 158 So. 454 , we said: “Where the trial court attempts to define the offense, for the commission of which an accused is being tried, it is the duty of the court to instruct the jury as to each and every essential element of the offense charged and a charge attempting to define the offense which does not cover material elements of the offense is necessarily misleading and prejudicial to the accused. It is equivalent to directing the jury that it is not necessary for the state to prove any elements of the offense except those included in the definition hy the court” (Italics mine.) Also, see State v. Hilsinger, 167 Wash. 427 , 9 P.2d 357 (1932); See v. Willett, 61 Wn.2d 681 , 379 P.2d 915 (1963); Sage v. Northern Pac. Ry., 62 Wn.2d 6 , 380 P.2d 856 (1963). The elimination of the above-stated element of the crime in instruction No. 13, supra, being equivalent to a directed verdict, amounted to a comment on the evidence by the court in violation of art. 4, § 16, of our state constitution and constituted, reversible error. Moreover, the defendant was denied the right to a trial by jury in violation of art. 1, § 22, of our state constitution, in that the defendant was denied the right to have all the elements of the crime with which he was charged tried by the jury rather than a disposition of one of the elements by the trial judge under instruction No. 13, supra. This also constituted reversible error. The majority opinion states that no exception was taken to instruction No. 13 at the trial, as required by Rule of Pleading, Practice and Procedure 51.16W, RCW vol. 0, to permit this court to review an assignment of error to the instruction. The rule is clear in this state that this court will consider an assignment of error, irrespective of exceptions taken to the ruling of the trial court, where a constitutional right of an accused is invaded. We expressly so stated in State v. Warwick, 105 Wash. 634, 637 , 178 Pac. 977 (1919): The instructions were a comment on the evidence within the constitutional provision above referred to, *318 and were not justified by the testimony of the appellant. The respondent claims that the error in the instructions is not now open to the appellant because no exceptions were taken thereto which were called to the attention of the trial court, relying upon the general rule in such cases. Where, however, the instructions invade a constitutional right of the accused, it is not necessary, in order to have such error reviewed, that an exception he taken and called to the attention of the trial court. State v. Crotts, 22 Wash. 245 , 60 Pac. 403 ; State v. Jackson, 83 Wash. 514 , 145 Pac. 470 ; Eckhart v. Peterson, 94 Wash. 379 , 162 Pac. 551 . (Italics mine.) Also, see State v. Marsh, 126 Wash. 142 , 217 Pac. 705 (1923). The remaining statements of the majority in justification of the jury verdict disclose no waiver by the defendant of the invasion of his constitutional rights, and I find none in the record. The defendant should be granted a new trial. Rosellini, C. J., concurs with Hunter, J. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9598866. Public record. Not legal advice.