Brimhall v. State

• Decision Date: 11 April 1927
• Docket Number: Criminal 638
• Citation: 31 Ariz. 522,255 P. 165
• Parties: WALTER BRIMHALL, Appellant, v. STATE, Respondent
• Court: Arizona Supreme Court

255 P. 165

31 Ariz. 522

WALTER BRIMHALL, Appellant, v. STATE, Respondent

Criminal No. 638

Supreme Court of Arizona

April 11, 1927

APPEAL from a judgment of the Superior Court of the County of Maricopa. E. Elmo Bollinger, Judge. Affirmed.

Mr. Leo Alldredge, Mr. Harry I. Howard, Mr. Thos. E. Flannigan and Mr. E. J. Flanigan, for Appellant.

Mr John W. Murphy, Attorney General, and Mr. Earl Anderson and Mr. Frank J. Duffy, Assistant Attorneys General, for the State.

OPINION

ROSS, C. J.

Defendant was convicted of aggravated assault. He appeals. The information charged, in substance, that the defendant, on May 25, 1925, in Maricopa county, Arizona while intoxicated, in a grossly and criminally negligent manner, with reckless disregard of his own safety and wilful indifference to the consequences liable to follow and with reckless disregard of the lives and safety of others, drove his automobile at night-time, without headlights, and on the wrong side of the public road, at a speed in excess of that allowed by law, and while thus driving he did wilfully, unlawfully, negligently and feloniously commit an assault upon the body and person of one Lena McKinney by running and driving with great force and violence his automobile into and against an automobile in which the said Lena McKinney was a passenger, inflicting upon her person serious bodily injuries.

The defendant filed a demurrer to this information on the ground that it failed to state the acts constituting the offense charged in ordinary and concise language and in such manner as to enable a person of common understanding to know what was intended, and on the further ground that the facts stated did not constitute a public offense. The particular point made is that an assault requires a specific intent, and the information, to be good, must allege such intent.

The statutory definition of an assault is that it "is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another." Section 207, Penal Code 1913. The word "assault" carries the idea of illegality and imports all the elements contained in the statutory definition. An information is sufficient which merely alleges an assault. 5 C. J. 764, and cases cited in note 83. "The minute details of the manner of the assault are matters of evidence and not of pleading." Territory v. Gonzales, 14 N. M. 31, 89 P. 250.

Bishop on Statutory Crimes, section 514, says that it is a sufficient allegation under the common law to state that the defendant "did make an assault" on a person named. McNamara v. People, 24 Colo. 61, 48 P. 541.

Our definition of assault is practically that of the common law. People v. Wells, 145 Cal. 138, 78 P. 470; People v. Lee Kong, 95 Cal. 666, 29 Am. St. Rep. 165, 17 L.R.A. 626, 30 P. 800.

In People v. Savercool, 81 Cal. 650, 22 P. 856, it is said:

"The ultimate or issuable facts which the statute declares to constitute the offense are to be pleaded substantially in the language of the law, while probative facts, such as the intent with which an assault is made, and the 'present ability' to do it, must be proved, but need not be alleged in the information or indictment."

Section 215 of the Penal Code of 1913 enumerates seven different circumstances under which an assault may become aggravated. The particular acts alleged in this information bring this case within subdivision 5 thereof, which reads: "When a serious bodily injury is inflicted upon the person assaulted." An aggravated assault therefore differs from simple assault only in that there is added thereto another object which is criminal -- the infliction of serious bodily injury.

It is also contended that the information is bad in that it shows on its face defendant did not intentionally assault the prosecuting witness, but, if anything, negligently ran his car into the car occupied by her, and that the negligent infliction of bodily injury on another is not an aggravated assault or battery. Whether one is criminally liable for personal injury inflicted upon another depends upon the character or kind of negligence. If it is a failure to exercise ordinary care the injured person may have his action for damages, but the state has never thought to punish him as for a crime. Where, however, the injury is the result of reckless, wanton and wilful conduct, showing an utter disregard for the safety of others, the law imputes to the wrongdoer a wilful and malicious intention even though he may not in fact have entertained such intention. There are numerous cases where conviction for manslaughter has been sustained when death was caused by the reckless driving of an automobile, the courts holding in all such cases that the intent to kill, or malice, was not necessary. Convictions of this kind have occurred in practically every state in the Union, and there has been a uniformity of decision upholding conviction. State v. Trott, 190 N.C. 674, 42 A. L. R. 1114, and annotation at page 1120, 130 S.E. 627. Earlier cases may be found collected in 16 A. L. R. 914, 21 A. L. R. 1504, 27 A. L. R. 1182, 30 A. L. R. 66, and 41 A. L. R. 725.

The question as to whether the driver may be prosecuted and convicted for aggravated assault or battery when the injury stops short of death but inflicts serious bodily injury has not come before the courts so frequently. Where such prosecutions have been had it seems that the courts have generally, if not uniformly, sustained them. In People v. Anderson, 310 Ill. 389, 141 N.E. 727, the prosecution was for an assault with intent to commit bodily injury, and the court there said:

"We have sustained convictions for manslaughter where the death was caused by the reckless driving of an automobile, wherein we held an intent to kill, or malice, was not required to be proved. People v. Falkovitch, 280 Ill. 321, 117 N.E. 398, Ann. Cas. 1918B 1077; People v. Camberis, 297 Ill. 455, 130 N.E. 712; People v. Schwartz, 298 Ill.218, 131 N.E. 806. Under the law as laid down in those cases we have no doubt where the proof is sufficient to establish beyond reasonable doubt that under the circumstances of the injury the conduct of the driver of an automobile was so reckless, wanton, and wilful as to show an utter disregard for the safety of pedestrians, a conviction for assault to commit a bodily injury would be warranted. An injury caused by negligence, not amounting to a reckless, wilful, and wanton disregard of consequences to others, cannot be made the basis of a criminal action."

In a later case, People v. Benson, 321 Ill. 605, 46 A. L. R. 1056, 152 N.E. 514, the court (we quote from headnote in 46 A. L. R. held:

"One attempting to pass an overtaken automobile in a highway under conditions rendering his conduct so reckless and wanton as to show an utter disregard of the safety of the persons in the overtaken car may, if he strikes such car and causes injury to its occupants, be found guilty of an assault with a deadly weapon."

In Bleiweiss v. State, 188 Ind. 184, 119 N.E. 375, 122 N.E. 577, it is said:

"There can be no doubt that an assault and battery may be committed by striking another with an automobile (Luther v. State [1912] 177 Ind. 619, 624, 98 N.E. 640), although, of course, there must be some evidence of a criminal intent. 'but the intent may be inferred from circumstances which legitimately permit it. Intent to injure may not be implied from a lack of ordinary care. It may be from intentional acts, where the injury was the direct result of them, done under circumstances showing a reckless disregard for the safety of others, and a willingness to inflict the injury, or the commission of an unlawful act which leads directly and naturally to the injury.' Luther v. State, supra, 177 Ind. 625, 98 N.E. 642."

And upon a rehearing (188 Ind. 186, 122 N.E. 577), the court applied to the defendant's conduct the well-recognized common-law rule that --

"The law holds him to have intended the natural and probable consequences of his unlawful and reckless acts."

The rule announced in these cases was again approved in Radley v. State, 197 Ind. 200, 150 N.E. 97.

In State v. Sudderth, 184 N.C. 753, 27 A. L. R. 1180, 114 S.E. 828, it is held (headnote 27 A. L. R.):

"One causing injury by violation of the motor vehicle law may be prosecuted for murder or manslaughter if death ensues, and for assault in case of injury."

In Banks v. Braman, 188 Mass. 367, 74 N.E. 594, it is said:

"The law is regardful of human life and personal safety, and, if one is grossly and wantonly reckless in exposing others to danger, it holds him to have intended the natural consequences of his act, and treats him as guilty of a wilful and intentional wrong."

Where a party intentionally does an unlawful act such as driving his car at a reckless rate of speed, or at night-time without headlights, or on the wrong side of the road, as charged in the information, and while so violating a positive law recklessly and wantonly, and without regard for the life and limb of others, runs into and injures another person, the rule seems to be that his conduct imputes to him the intention to do what in fact he does do; and, in such circumstances, the courts unhesitatingly hold such party guilty of manslaughter, and we see no good reason why he may not be held for the lesser offense of aggravated assault. State v. Sudderth, supra; Shorter v. State, 147 Tenn. 355, 247 S.W. 985; State v. Lewis, 4 Penne. (Del.) 332, 55 A. 3; State v. Schutte, 87 N. J. L. 15, 93 A. 112; Id., 88 N. J. L. 396, 96 A. 659.

The words employed in the information to describe defendant's negligence show that it was wanton and reckless and in utter disregard of the safety of others, as also of himself, and are sufficient, if...