¶1(concurring in the dissent) — I concur in Justice Sanders’ dissent to the extent that he concludes the jury’s general verdict and its special finding are irreconcilable, thus requiring the reversal of Matthew Goins’ conviction. I write separately because I believe that in State v. Hurley, 4 Wn. App. 781, 483 P.2d 1274, review denied, 79 Wn.2d 1005 (1971), Division Three of the Court of Appeals decided this issue persuasively. In addition, I wish to state my view that the proper remedy here is a remand for a new trial.
¶2In Hurley, the defendant was charged with robbery, which required the jury to find that the defendant “ ‘was armed with a deadly weapon.’ ” Hurley, 4 Wn. App. at 782 (emphasis omitted). The jury was also asked to make a special finding of whether the defendant was “armed with a deadly weapon at the time of the occurrence,” which was “solely for the use of the Board of Prison Terms and Paroles in fixing a minimal term of confinement” as required by former RCW 9.95.015 (Laws of 1961, ch. 138, § 1). 4 Wn. App. at 783, 782. The Hurleyjury found the defendant guilty of robbery “but answered the special interrogatory in the negative.” Id. at 783.
¶3*742The Court of Appeals held in Hurleythat when there is a conflict within the same count, between a general verdict and a special finding that is required by a separate statute for a distinct purpose, a conviction will not stand. The court, therefore, reversed the robbery conviction and remanded for a new trial.
¶4Because Hurleyis indistinguishable from the present case and, I believe, decided correctly, I would have us follow it. I, therefore, dissent. Unlike Justice Sanders, however, I would remand for a new trial on the second degree assault charge, the remedy imposed in Hurley.