Brown v. State

• Citation: 590 P.2d 1312
• Decision Date: 22 February 1979
• Docket Number: No. 4904,4904
• Parties: Richard Charles BROWN, a/k/a Richard Charles Bradenberg, Appellant (Defendant below), v. The STATE of Wyoming, Appellee (Plaintiff below).
• Court: United States State Supreme Court of Wyoming

Page 1312

590 P.2d 1312

Richard Charles BROWN, a/k/a Richard Charles Bradenberg, Appellant (Defendant below), v. The STATE of Wyoming, Appellee (Plaintiff below).

No. 4904.

Supreme Court of Wyoming.

Feb. 22, 1979.

Dan R. Price, II of Morgan & Brorby, Gillette, for appellant.

V. Frank Mendicino, Atty. Gen., Peter J. Mulvaney, Senior Asst. Atty. Gen., and Sharon A. Fitzgerald, Legal Intern, Office of the Atty. Gen., Cheyenne, and Willis C. Geer, Campbell County Atty., Gillette, for appellee.

Before RAPER, C. J., McCLINTOCK, THOMAS, and ROSE, JJ., and GUTHRIE, J., Retired ^*.

GUTHRIE, Justice, Retired.

Appellant was convicted of a crime of assault with a dangerous weapon in violation of § 6-70B, W.S.1957, 1975 Cum.Supp. (now § 6-4-506(b), W.S.1977). This appeal entails the review of two claimed instructional errors, both of which require consideration for the first time of the effect of the amendment enacted by the legislature in 1975, being Chapter 70, S.L. of Wyoming 1975. This amendment classified an unloaded firearm as a dangerous weapon as a matter of law.

The two areas in which appellant claims error involve a claim that the court failed to correctly state the elements of the offense of assault with a dangerous or deadly weapon, basing this claim upon the view that the instruction necessarily should have included the definition of simple assault as defined in § 6-4-501, W.S.1977, requiring proof of an unlawful attempt to accomplish a violent injury upon the person of another, coupled with the present ability to accomplish such injury. The second contention is that the court was in error in refusing to give two tendered instructions affecting his defense theory of voluntary intoxication. He asserts that specific intent, being a necessary element of the crime in question, that he was entitled to instructions that evidence of voluntary intoxication may be considered for the purpose of negativing the state of mind necessary to commit a specific intent crime. We find no error and will affirm this conviction.

On March 8, 1977, in the evening, two officers of the Gillette Police Department, while on patrol, noticed the erratic movements of a pickup which was being operated without lights. Appellant and an acquaintance were occupants of this vehicle. They had been drinking at a local tavern for some hours. The officers forced the pickup into a parking lot where it was stopped. Officer Ross left the police car and approached the truck from the left rear, while the other driver radioed the police department to advise of the stop. As Ross approached the vehicle, he observed appellant exchanging seats with the driver. Ross then ordered, "Hold it. Police officer. That isn't going to work." Appellant pointed a gun out the window of the cab and in the direction of Ross, who immediately grabbed it by the barrel and pushed it away, and the gun was discharged almost simultaneously within about four to six inches from his face. Ross then took the gun from appellant and threw it over his shoulder and placed the appellant and the driver under arrest. The gun was a single-shot .22 calibre rifle with a sawed-off barrel and with the stock cut into the form of a pistol grip.

After this arrest there was an information ultimately filed which charged that appellant willfully, unlawfully and maliciously perpetrated an assault upon Ross while armed with a dangerous and deadly weapon, and this information alleged violation of § 6-70B. This statute provides:

"Whoever, while armed with a dangerous or deadly weapon, Including an unloaded firearm, maliciously perpetrates an assault or an assault and battery upon any human being, shall be fined not more than one thousand dollars ($1,000.00), or be imprisoned in the penitentiary not more than fourteen (14) years, or both." (Underlining supplied.)

This statute, until 1975, did not include the words "including an unloaded firearm," which were added by amendment at that time. This amended statute was in effect at the time this occurrence took place. The court gave the following instruction:

"The defendant is charged with the crime of assault with a dangerous or deadly weapon. The defendant has entered a plea of not guilty.

"To establish this charge each of the following claims must be proved:

"1. That the defendant intentionally and maliciously attempted to do bodily harm to David A. Ross;

"2. That the defendant had the apparent ability to cause such bodily harm;

"3. That defendant's conduct resulted in David A. Ross being in immediate apprehension of bodily harm;

"4. That the defendant was armed with a dangerous or deadly weapon;

"5. That the act alleged occurred on or about the 8th day of March, 1977, in Campbell County, Wyoming."

Appellant now contends that the use of the words "apparent ability" rather than "present ability" in defining the essential elements of the charge is reversible error. In reliance upon Evanson v. State, Wyo., 546 P.2d 412, he also asserts that the instruction incorrectly defined the offense by requiring an attempt to "do bodily harm" rather than "to commit a violent injury." These contentions, however, as well as the brief of the State, fail to properly consider the effect of the amendatory language which was inserted in the statute and which was in effect when the earlier authorities upon which appellant relies were decided. Nor will we consider this last suggested error because we do not find specific exception taken to this instruction objecting to the use of the words "do bodily harm" rather than "to commit a violent injury." Because the record does not reveal any specific objections, we do not consider it. Reeder v. State, Wyo., 515 P.2d 969, 971-972. We are then concerned with the intent of the legislature in making this amendment, and must repeat certain rules. It is presumed that when such an amendment is enacted to an existing statute that some change in the existing state of the law was intended and that the court should endeavor to make such amendment effective, DeHerrera v. Herrera, Wyo., 565 P.2d 479, 483; State v. Yellowstone Park Co., 57 Wyo. 502, 121 P.2d 170, 171, certiorari denied 316 U.S. 689, 62 S.Ct. 1280, 86 L.Ed. 1760. See also, 1A Sutherland, Statutory Construction, § 22.30, p. 178 (Sands 4th ed. 1972). We must also presume that such amendment was enacted with full knowledge of existing decisions and of the statutes with respect to the matter, DeHerrera v. Herrera, supra; Matter of Adoption of Voss, Wyo., 550 P.2d 481, 486. Under these rules we must then consider the law as it had existed and had been interpreted before the amendment and the effect and purpose of the amendment changing it, with the idea of reconciling both provisions if possible. People v. Johnson, 270 Mich. 622, 259 N.W. 343, 344. If the conflict cannot be reconciled, the amendatory language must prevail since it is the latest decision of legislative will, United States Fidelity & Guaranty Co. v. Anderson, 38 Wyo. 88, 264 P. 1030, 1032.

No citation of authority is required to demonstrate that when the legislature enacted this amendment that it removed the element of the present ability so to do. It is readily apparent this raises an irreconcilable conflict with earlier authorities unless this amendment is construed as eliminating such element. See Concurring Opinion, Justice Thomas, Fuller v. State, Wyo., 568 P.2d 900, 904. Under this amendment, "apparent ability" must be the test applied, Casey v. State, Tenn.Cr.App., 491 S.W.2d 90, 93-94, as this statute now appears to be directed at the...