People v. Doud

• Citation: 193 N.W. 884,223 Mich. 120
• Decision Date: 04 June 1923
• Docket Number: No. 121.,121.
• Parties: PEOPLE v. DOUD.
• Court: Supreme Court of Michigan

223 Mich. 120

193 N.W. 884

PEOPLE

v.DOUD.

No. 121.

Supreme Court of Michigan.

June 4, 1923.

Error to Circuit Court, Mackinac County; Frank Shepherd, Judge.

James Doud was convicted of assault with a revolver without intent to commit murder or to inflict great bodily harm less than the crime of murder, and he brings error. Reversed and new trial granted.

Argued before WIEST, C. J., and FELLOWS, McDONALD, CLARK, BIRD, SHARPE, MOORE, and STEERE, JJ. Sprague & Shepherd, of Cheboygan, for appellant.

Andrew B. Dougherty, Atty. Gen., and Homer H. Quay, Asst. Atty. Gen., for the People.

WIEST, C. J.

Defendant was convicted of the crime of making a felonious assault with a revolver upon one Albert Davenport, without intent to commit the crime of murder or to inflict great bodily harm less than the crime of murder, and was fined $200 and $50 costs with the alternative of six months confinement in jail. The case is here by writ of error.

The incident leading to the conviction happened on Mackinac Island, and was occasioned by a dispute over the dividing line between defendant's land and land owned by the state of Michigan. Mr. Kenyon, state park superintendent, sent men to erect a fence upon what he claimed to be the line, and defendant, claiming they were on his land ordered them off, and they left, but the next day returned in greater force and renewed their work. Thereupon defendant, armed with a revolver, went to where the men were working, as he claimed to scare them off, and without intending to shoot. At the trial he testified that when he got about 25 feet from the men he held the revolver pointed down toward the ground and ordered them to leave, and they complied. Albert Davenport testified that defendant pointed the revolver at him and said, ‘If I didn't get off while he counted three, he would shoot; so he counted two, and I went off.’

The charge was laid under section 15228, C. L. 1915, which provides:

‘Whoever shall assault another, with a gun, revolver, pistol, knife, iron bar, club, brass knuckles or other dangerous weapon, but without intending to commit the crime of murder, and without intending to inflict great bodily harm less than the crime of murder, shall be deemed guilty of a felonious assault.’

Defendant contends that this statute involves an intent on the part of the accused to do a bodily hurt to another. This statute expressly negatives certain felonious intents, the purpose being to save the declared crime from falling within other defined felonies.

It is said the offense charged is one intermediate between simple assault and battery and assault with intent to inflict great bodily harm less than the crime of murder. People v. Warner, 201 Mich. 547, 557, 167 N. W. 878, and it is urged that:

‘In every simple assault, there is a criminal intent, otherwise there is no assault, ‘Malice or wantonness' is the basic essential and a man's intention must meet with his act in constituting a simple assault,’ citing People v. Carlson, 160 Mich. 426, 125 N. W. 361,136 Am. St. Rep. 447; Tiff. Cr. L. (4th Ed.) p. 683.

In finding the defendant guilty, the jury must have accepted the claim of the prosecution that defendant pointed the revolver at Mr. Davenport and made the threat claimed. A secret intent not to inflict an injury, wholly incompatible with a declared purpose to injured, accompanied by acts manifesting a corporal hurt to one immediately menaced thereby, may, of course, be told to the jury by the accused, and such was permitted in this case; but the trial judge held that defendant's acts governed, and not his secret intention. An assault, under practically all definitions, must carry on the face of its attendant circumstances an offer or attempt with force or violence to do a corporal hurt to another. This involves an intent or purpose to inflict a corporal hurt to another. It is not necessary that the prosecution go outside of the disclosed evidence of such intent and establish, by extrinsic proof, the intent entertained by the accused. The intent to do an injury may be found, and usually is found, from the acts of the accused, and, in the absence of a declaration of intention, or of evidence by the accused, must, if at all, be so found. The defendant, however, is at liberty to tell his purpose, even though contradicted by his every act, and have the same go to the jury. Such is the law of simple assault.

Does the statute under which defendant was convicted change such rule and constitute it a crime to point a revolver at another, accompanying the act with a threat of employment of its lethal power in case a demand made is not complied with, regardless of the intent of the aggressor? The statute speaks of an assault with a revolver or other dangerous weapon, and as the offense covered thereby was formerly punished as a simple assault we must infer that in the use of the term ‘assault’ the Legislature intended the same to carry its ordinary meaning in connection with crimes of offered violence. Evidently feeling that the penalty for simple assault did not meet occasions where a dangerous weapon was employed, the Legislature fixed a greater penalty for such aggravated assaults but did not eliminate the question of intent or purpose, involved in every case of assault of a criminal nature. Whether the statute in question raises the grade of the offense from former simple assaults or seeks to cover offenses not included within assaults with specific intents, we find it midway between offenses involving a purpose to exercise violence and assaults involving a felonious intent.

At the trial defendant was permitted to testify fully as to his intent, and claimed he entertained no purpose to inflict injury. Even though such claim was refuted by his acts, demeanor, and words, defendant had a right to go to the jury with what he claimed to have been his purpose. The trial judge gave the jury no instruction upon the issue of defendant's intent, although requested to do so, but charged:

‘The people say that he pointed the gun at Davenport, and the people say that he pointed the gun under such circumstances as imported an intent to fire his gun off. The people do not say that he did intend to (it is not necessary that they should say it or prove it); but if he pointed a gun under such circumstances that Davenport had reasonable grounds to believe that he intended to fire it off, and it was pointed at Davenport at the time, then he is guilty of the offense charged.’

While the fear of one assaulted, arising from reasonable apprehension of bodily hurt, threatened by another having means and ability to inflict the same, is mentioned in some of the books as proper evidence to go to the jury, we do not understand that such fear governs upon the question of the intent or purpose of an accused under this statute. We think defendant was entitled to have the following portion of his sixth request to charge given:

‘As to what his intention actually was you must determine that, if you are able to, from the evidence in the case, considering what he did, what he said, and what he testifies to as his intent.’

It is claimed that defendant intended no harm to the workmen and had the revolver for its moral effect, to scare them off his land; that the revolver was a borrowed one and he did not know whether it was loaded or not, and in the brief it is said:

‘In the case at bar, the attention of the court is invited to the fact that there is no proof whatever that the revolver held by Doud was loaded. The only testimony on the point is that given by Mr. Doud himself, who testified that he did not know whether the gun was loaded or not.

‘It has been held that there is no presumption that a revolver so used was loaded and that the burden of proof is on the state’—citing State v. Napper, 6 Nev. 113;Price v. U. S., 156 Fed. 950, 85 C. C. A. 247,15 L. R. A. (N. S.) 1272,13 Ann. Cas. 483;Fastbinder v. State, 42 Ohio St. 341.

The authorities are not in harmony upon the subject of whether, in a prosecution for assault with a dangerous weapon, such as a revolver, the prosecution must establish that it was loaded at the time of its employment. Without considering, except as herein stated, underlying statutes, if any, or specific intents involved in charges of assaults with firearms, we will take a view of the leading cases upon the subject:

In State v. Godfrey, 17 Or. 300, 20 Pac. 625,11 Am. St. Rep. 830, the charge was being armed with a Winchester rifle and making an assault, and threatening to kill therewith if the person so threatened did not turn back. There was no direct evidence that the gun was loaded. It was held:

‘To point an unloaded gun at another, at a distance of from 30 to 70 yards, whereby such other is put in fear, and flees, is not an assault with a dangerous weapon.’

In People v. Sylva, 143 Cal. 62, 76 Pac. 814, it was held:

‘The pointing of an unloaded gun at the prosecuting witness, accompanied by a threat to shoot him, without any attempt to use it otherwise, is not an assault with a deadly weapon, and cannot sustain a conviction for an assault for want of a present ability to commit violent injury on the person threatened in the manner attempted.’

In State v. Napper, supra, the court held that a conviction of an assault with a deadly weapon, with intent to inflict a bodily injury, could not be sustained because there was no allegation...