Volume 65 — Washington Reports, Second Series

<bold>[1] Assault — Criminal Liability — Intent to Kill — Proof.</bold> 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. <bold>[2] Same — Criminal Liability — Intent to Kill — Evidence.</bold> 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. <bold>[3] Same — Criminal Liability — Intoxication.</bold> 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). [1] See Am. Jur. 2d, Assault and Battery § 92.

<bold>[1] Insurance — Actions on Policies — Negligence of Broker.</bold> Before an insured can prevail in an action charging an insurance broker with negligence in failing to obtain or renew for a sufficient length of time an extension of an insurance policy, he must prove not only negligence but also that his loss would have been within the risks insured against in the policy, since the issue is one of actual causation of damage to the insured, in both breach of contract and negligence actions. <bold>[2] Trial — Insurance — Instructions — Proximate Cause —</bold> <bold>Negligence Action.</bold> In such an action, an instruction is erroneous when the trial court states that the negligence of an insurance broker in failing to obtain or renew an extension of a policy's trading limits endorsement, must be the "proximate cause" of the damage to the insured, where its effect is to lead the jury to believe the chain of causation is complete if the insured proves the negligence of the broker caused the lapse of the endorsement, since it failed to show the necessity of the insured's proving that the damage was caused by a risk insured against by the policy that would have been in effect but for the negligence of the broker. <bold>[3] Insurance — Action on Policies — Submission of Policy to</bold> <bold>Jury.</bold> Where there is a jury question in an action concerning an insurance policy on whether or not the loss would have been in the coverage clause of the policy, then the court must give appropriate instructions explaining to the jury any terms of the coverage clause that the jury might not be expected to understand when the policy is given to the jury for its consideration. <bold>[4] Same — Action on Policies — Burden of Proof.</bold> An instruction which fails to distinguish between what an insured must prove in order to show a claim under the coverage of a policy and what the insurance company must prove in defense of the claim, is defective if given in a context which leads the jury to believe that the company must disprove the allegations of the insured even though the insured has introduced no evidence to support his claim, since there is a basic distinction between the insured's responsibility to show that a loss was caused by a peril insured against, and the company's responsibility to prove certain defenses with regard to a claim, <italic>e.g.</italic> lapse of the policy. <bold>[5] Same — Marine Insurance — "All Other Perils" Clause.</bold> A clause in a marine insurance policy insuring against "perils of the sea and<page_number>Page 395</page_number> all other like perils, losses and misfortunes", insures against fortuitous perils outside the vessel, such as wave and wind action, as differentiated from an internal weakness for the vessel; and the "all other like perils" phrase broadens the coverage only to the extent of insuring against similar perils which might not be within the strict interpretation of the words "perils of the seas", and does not convert this clause into an all-risk coverage clause. <bold>[6] Same — Marine Insurance — "Inchmaree" Clause.</bold> An "Inchmaree" clause in a marine insurance policy is an enumerated perils clause which does not convert the coverage into all-risk coverage; and the burden of proof under this clause is still on the insured to show that the loss was caused by a peril insured against. <bold>[7] Same — Marine Insurance — Sinking by Unknown Cause —</bold> <bold>Presumptions.</bold> An owner of an insured vessel, who elects at trial on the policy not to call any of the available eyewitnesses to testify as to the cause of the sinking of this vessel in fair weather and calm water, can not make use of the presumption that such a sinking of a seaworthy vessel is presumed to be within the coverage of the policy, since this presumption is available only where the cause of the sinking is really unknown, and ordinarily only after any evidence available to the insured as to the cause of the sinking has been submitted to the trier of the facts. [5] See Ann. 9 A.L.R. 1314; Am. Jur., Insurance (1st ed. § 1032<italic>et seq.</italic>).

<bold>[1] Witnesses — Competency — Privileged Communications — Husband</bold> <bold>and Wife.</bold> A husband's letter to his wife was not protected by RCW <cross_reference>5.60.060</cross_reference>(1) as a confidential communication between spouses, where, after writing the letter in jail, the husband handed the letter to a guard, unsealed, knowing that it would be censored, and the letter was later stamped to indicate censoring had been accomplished, since, under such circumstances, the letter did not meet either of the requirements for a protected communication between spouses, <italic>viz.</italic>, that the communication was intended to be confidential by the sender, and there was a successful confidential communication. <bold>[2] Criminal Law — Searches and Seizures — Validity —</bold> <bold>Justiciable Issue.</bold> Whether a defendant's constitutional rights were violated by the issuance of a search warrant directed to the defendant's attorney for the purpose of recovering a letter written by the defendant, was no more than a moot question and presented no issue to be decided by the court, where the officer serving the warrant did not exercise his authority upon the defense attorney's objection and, thus, nothing was produced under the warrant and no prejudice was shown. <bold>[3] Same — Trial — Discovery — By State.</bold> The inherent power of the trial court to grant discovery is not limited to that which benefits the defendant, and, absent a violation of the privilege against self-incrimination, the attorney-client privilege, or other privileges provided by law, it is within the power of the trial court to order the defendant's counsel to produce evidence that can throw light on issues in the case. <bold>[4] Same — Evidence — Character of Defendant — Proof of Motive.</bold> In a prosecution for murder, it was not error to admit testimony tending to show the defendant as an alcoholic, notwithstanding that such<page_number>Page 526</page_number> testimony allegedly placed the defendant's character in issue prior to his taking the stand, where the fact of alcoholism had a direct relation to proof of motive under the state's theory of the case. [1] See Ann. 63 A.L.R. 107; Am. Jur., Witnesses (1st ed. § 375<italic>et seq.</italic>).