Pekelis, J. Scholfield, J., concurs. Forrest, J., dissents by separate opinion.
Larry Wendell Weiding appeals his conviction on one count of second degree assault. He contends that the information was constitutionally defective because it (1) charged him under a statute that was not in effect at the time the alleged offense occurred, and (2) failed to allege the element of knowingly, a statutory element of second degree assault.
On August 26, 1988, an information was filed charging Larry W. Weiding with second degree assault. The relevant language of the information provided as follows:
That the defendant, on or about the 4th day of June, 1988, did assault another person, to-wit: Andre Guiberson, with a deadly weapon, to-wit: motor vehicle; proscribed by RCW 9A.36.021[(1)](c), a felony.
The reference to RCW 9A.36.021(1)(c) was an error, since that statute did not take effect until July 1, 1988, approximately 4 weeks after the alleged offense took place. Laws of 1987, ch. 324, §§ 3, 4.*fn1 The applicable statute at the time of Weiding's arrest was RCW 9A.36.020(1)(c) which provides in part:
(1) Every person who, under circumstances not amounting to assault in the first degree shall be guilty of assault in the second degree when he:
(c) Shall knowingly assault another with a weapon or other instrument or thing likely to produce bodily harm;
After the jury found Weiding guilty, he moved for an arrest of judgment based on the error in the information. The court found that the error was ...