81 P. 792 (Wyo. 1905), Delaney v. State

Citation:81 P. 792, 14 Wyo. 1
Opinion Judge:SCOTT, DISTRICT JUDGE.
Party Name:DELANEY v. STATE
Attorney:J. H. Ryckman, for plaintiff in error. W. E. Mullen, Attorney General, for the State.
Judge Panel:SCOTT, DISTRICT JUDGE. POTTER, C. J., and PARMELEE, District Judge, concur. Justices Beard and Van Orsdel being disqualified, District Judges Scott and Parmelee were called in to sit in their stead. POTTER, C. J., and PARMELEE, District Judge, concur.
Case Date:August 01, 1905
Court:Supreme Court of Wyoming
 
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Page 792

81 P. 792 (Wyo. 1905)

14 Wyo. 1

DELANEY

v.

STATE

Supreme Court of Wyoming

August 1, 1905

ERROR to the District Court, Uinta County, HON. DAVID H. CRAIG, Judge.

William J. Delaney was charged upon an information filed by the Prosecuting Attorney of Uinta County with the crime of assault and battery upon one Stark with intent to commit murder. He was found guilty as charged in the information, was sentenced to imprisonment in the penitentiary, and thereupon prosecuted error.

Affirmed.

J. H. Ryckman, for plaintiff in error.

The trial court erred in refusing to instruct the jury that the defendant might be found guilty of aggravated assault and battery or of assault and battery. Whether the defendant was guilty or not, and if guilty, the degree of the offense, was for the jury. (Rev. Stat. 1899, Sec. 5389; Brantley v. State, 9 Wyo. 102; State v. Fisher, 3 N.E. 379; 2 Pl. & Pr., 857; State v. Cooper, 3 P. 429.) Aggravated assault and battery as defined by Section 4959, Revised Statutes, is included in assault and battery with intent to kill, and the same is true of assault and battery as defined by Section 4658, and there being evidence that would have justified the jury, under proper instruction, in returning a verdict under either of those sections, the court should have instructed them as to their duty in that regard. Such an instruction ought to be given even where the evidence of the inferior offense is slight; and where there is no evidence of a lower degree, except that of the defendant, the question as to the lower degree should be submitted to the jury. (Bish. Crim. Proc., 3980; State v. Evans, 36 Kan. 497; 11 Pl. & Pr., 212, 215; State v. Palmer, 88 Mo. 568; State v. Dolan, 17 Wash. 499; State v. Young, 60 P. 650; People v. Watson, 57 P. 1071 (Cal.); State v. Young, 99 Mo. 666; Dolan v. State, 44 Neb. 643; Carleton v. State, 61 N.W. 699; State v. Clemmons, 51 Iowa 274; State v. Walters, 45 Iowa 389; State v. Pannell, 56 Iowa 29; State v. Peters, 56 Iowa 263; Chappel v. State, 7 Caldw., 92 (Tenn.)

Where instructions are inconsistent, the judgment must be reversed. (Palmer v. State, 9 Wyo. 40.) And erroneous instructions are not cured by the fact that the law on the subject is correctly stated in another. (Yerkes v. R. R. Co., 112 Wis. 184.) Instructions 8, 9 and 10 were erroneous and prejudicial to the rights of the defendant. Instruction number 8 seems to make the procuring of a gun by the defendant evidence of his guilt; yet he might have been justified, since there is no evidence that he shot at Stark at any time before the latter got his gun and pointed it at the defendant's house. The ninth instruction stated that if defendant could have retreated to a place of safety before plaintiff reached his gun, it was his duty to have done so. That is not the law governing the conduct of a man on his own premises. (Palmer v. State, supra; Elder v. State, 69 Ark. 648.) Again these instructions took away from the jury matters which are exclusively in their province.

W. E. Mullen, Attorney General, for the State.

The allegations of the information would not support either assault and battery or aggravated assault and battery as those crimes are defined in the statute; and the question arises, therefore, whether if the defendant had been convicted of a felonious intent as charged there would sufficient remain to charge the lower offenses. The statute in defining assault, assault and battery, and aggravated assault and battery has departed from the definitions at common law. If the allegation of the information will not support the lesser offenses, then there was no error in refusing to give the instructions requested by the plaintiff in error. Further the evidence does not make out a case of assault and battery or aggravated assault and battery; the wounds inflicted were sufficient to produce death ordinarily, and the evidence does not disclose the slightest justification for the assault and battery by plaintiff in error. Applied to the evidence, the instructions given to the jury which are complained of by counsel for plaintiff in error are not prejudicial, but correctly state the law as governed by the evidence; but if there was any error in the ninth instruction, it was not prejudicial. Upon the whole case the verdict and judgment was clearly right and a reversal would not be authorized. (Miller v. State, 3 Wyo. 663.)

SCOTT, DISTRICT JUDGE. POTTER, C. J., and PARMELEE, District Judge, concur. Justices Beard and Van Orsdel being disqualified, District Judges Scott and Parmelee were called in to sit in their stead.

OPINION

[14 Wyo. 5] SCOTT, DISTRICT JUDGE.

The defendant (plaintiff in error) was tried upon an information charging him with an assault and battery with intent to commit murder, found guilty and sentenced to the penitentiary for a term of years.

[14 Wyo. 6] 1. Plaintiff in error contends that it was error for the court to give to the jury the following instructions which were requested by the State, viz:

"8. If you find from the evidence that the defendant procured his gun while Stark was fleeing from the house, and...

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