Bryant v. State

• Decision Date: 10 June 1895
• Citation: 5 Wyo. 376,40 P. 518
• Parties: BRYANT v. STATE
• Court: Wyoming Supreme Court

40 P. 518

5 Wyo. 376

BRYANT v. STATE

Supreme Court of Wyoming

June 10, 1895

Information filed in District Court September 15, 1893.

ERROR to District Court for Fremont County, HON. JESSE KNIGHT Judge.

Frank Bryant, the plaintiff in error, was charged upon information filed by the prosecuting attorney of Fremont County, with having feloniously, wilfully, deliberately, and with premeditated malice aforethought, with a certain loaded pistol, made an assault upon one Chester D. Chrisman, with intent to murder him, on the 5th day of July, 1893. On November 15, 1893, the defendant was arraigned and entered a plea of "not guilty." His trial occurred at the June term, 1894, of the district court for Fremont County. In addition to the testimony recited in the opinion, the following will sufficiently explain the occurrences connected with the alleged assault. An eye witness testified about the occurrence as follows: "Between one and two o'clock I was waltzing. I think it was the first waltz after supper. The music stopped, I turned facing the music stand, and just at that time I saw Bryant pull a pistol out of his pocket. Chrisman jumped towards him and struck him about the same instant. I started towards them and he struck him again. He staggered off; Chrisman struck him again and grabbed the pistol at the same time, swung around and fell on the floor facing me. As they swung around I reached and grabbed the pistol, and at the same time I put my hand on Chrisman's shoulder. The pistol was discharged; I knocked them both over on the floor; there was a struggle took place then, and finally I got the pistol away and had it in my own hands Chrisman grabbed it; I struggled for it, and Louge grabbed the pistol. I said, 'Chet, let go of the pistol.' He looked up and let go the pistol. I took Bryant off in the dressing room; there was some loud talk in there, and we took Bryant out and turned him over to Brower." The same witness also testified that, afterwards, the same evening Bryant said to him that "he intended to shoot Chrisman, and thought he had the pistol right in his breast when he pulled it off." Bryant's explanation was in the nature of self-defense and that the gun was fired accidentally. The verdict of the jury, and a certain instruction requested and refused, and one given, all of which were excepted to, appear in the opinion. When the verdict was received, the jury were polled, and each juror answered that it was his verdict, whereupon, at the request of attorneys for defendant, the court informed the jury that the verdict, as presented, was a verdict of guilty of a felony, and asked "if any member of the jury had considered it otherwise, or at this time under the explanation as made, objected to said verdict," and none of the jurors objected thereto. Objection was made to the recording of the verdict, by defendant's counsel, which was overruled, and an exception was preserved. The defendant was sentenced to a term of three years in the penitentiary.

Reversed.

Melville C. Brown, for plaintiff in error.

The verdict will not support the judgment for imprisonment in the penitentiary. It is either so uncertain as to be wholly void, or treating portions of it as surplusage, it can support a judgment for simple assault only. The term "felonious assault" describes no particular offense known to the law. If a verdict does not find the issues presented by the record, but some other, or is silent on some element of the offense, no valid judgment can be recorded upon it. (1 Bish. Cr. Pro., sec. 1015; Wharton Pl. & Pr., sec. 756; David v. State, 4 Ala. 69; State v. Bishop, 73 N.C. 44; State v. Stanley, 42 La. Ann., 978; Westbrook v. State, 52 Miss. 777; Stevens v. State, 56 Ga. 604; Riflemaker v. State, 25 O. St., 395; Allen v. State, 52 Ala. 391; Gibbs v. State, 34 Tex. 134; Sheffield v. State, 1 Tex. App., 640; Lockwood v. State, id., 749; Manigault v. State, 53 Ga. 113; State v. Lowman, Riley, 67; Long v. State, 34 Tex. 566; State v. Davis, 20 La. Ann., 354; State v. Edmunds, 4 Dev., 340; Curran's case, 7 Gratt., 619; State v. Rawlins, 8 N.H. 550; Wynn v. State, Blackf., 28; State v. White, 41 Ia. 316; State v. Behee, 17 Kan. 402; Wilson v. State, 53 Ga. 205; 40 Cal. 426; Ex parte Max, 44 id.; People v. Venard, 6 id., 562; 1 Bish. Cr. Pro., sec. 481 et seq.; Com. v. Russell, 4 Gray, 36; 1 Bish. Cr. L., sec. 810.) Whether our statute covers the crime of intent to commit manslaughter may well be questioned; but if the manslaughter would arise by culpable neglect or criminal carelessness, there cannot be in that any intent to commit crime. That which reduces the crime in such a case to manslaughter is lack of intention. (1 Bish. Cr. L., secs. 736, 314, 730; Maha v. People, 10 Mich. 212; Slattery v. People, 58 N.Y. 354; Henderson v. State, 12 Tex. 525.) The mere drawing of a pistol, though loaded, is not an assault. (2 Bish. Cr. L., sec. 31; Lawson v. State, 30 Ala. 14; 3 Lawson's Crim. Def., 732.) In this class of cases the intent is specific and must be proved. It is not to be found as a presumption of law. (1 Bish. Cr. L., secs. 720-31, 335, 342-13; Wharton's Cr. Ev., sec. 734 et seq.; Wharton's Cr. L., sec. 176.) The evidence is insufficient to prove an assault. If the verdict is good only for simple assault, but bad for any higher offense, then defendant cannot be again put in jeopardy by a trial for any higher offense. (People v. Apgar, 35 Cal. 389; People v. Gilmore, 4 id., 380; People v. Backus, 5 id., 278; People v. Chang, 94 id., 380.)

Benjamin F. Fowler, attorney general, for defendant in error.

An assault is an intentional attempt, by violence, to do an injury to another. (2 Whart. Cr. L., sec. 1242.) There was an assault in this case (Watts v. State, 17 S.W. 1092), and the evidence discloses an intent to kill. Under the charge of assault with intent to commit murder, the accused may be convicted of an assault with intent to commit manslaughter. (State v. White, 45 Ia. 325; State v. McGuire, 87 id., 142; State v. Postal, 83 id., 460; Words v. State, 27 Tex. App., 393; State v. Connor, 13 N.W. 327; Jarrell v. State, 58 Ind. 293; State v. Throckmorton, 53 Ind. 354; Cook v. Terr'y, 3 Wyo. 109.) The verdict is good and sufficient. (State v. West, 8 Am. Cr. R., 381; Com. v. Sanborn, 14 Gray, 393; State v. McIntre, 66 Ia. 339; Cook v. T'y, supra.) The word felonious cannot be treated as meaningless.

CONAWAY, JUSTICE. GROESBECK, C. J., and POTTER, J., concur.

OPINION

CONAWAY, JUSTICE.

There is a considerable number of assignments of error in this cause, only four of which we have deemed it necessary to discuss.

1. It is assigned as error that the verdict is not sustained by sufficient evidence.

The occurrences upon which the charge is founded took place in the early morning of the fifth of July, 1893, in a hall where a ball was in progress. Plaintiff in error was there with a revolver in his possession. During an altercation which occurred between him and Chrisman, he drew the revolver from his clothing, and a struggle for the possession of the revolver occurred, during which the revolver was discharged, whether intentionally by plaintiff in error, or accidentally, may not be entirely clear. Why he took a revolver to the ballroom, the only revolver seen there, is a question upon which there is some testimony.

John Carmoody testifies to a conversation plaintiff had with him in front of the hall and before the trouble occurred when the pistol was discharged. Carmoody relates this conversation as follows:

"I just got through dancing and was a little warm and stepped out on the sidewalk. Bryant was there and we passed the evening, and Frank asked me if I heard that Mrs. Lee and Mrs. Bryant were going to be put out of the hall. I told him I heard Mrs. Lee was, but I didn't think there was anything in it. We talked about it a few minutes. He said, 'Well, I told Rody if they put her out I would help him.' Then he started talking about his wife. He said she was his wife and she had not treated him right, but he didn't care particularly about that if she would treat the child right. I started to move away, and then he spoke again about putting the women out. He said, 'Well, I am looking for trouble; I am fixed for it. I have one gun of my own and Fiser just gave me another.' I said, 'Trouble is a good thing to leave alone.' We talked a few words and then separated."

On cross-examination this witness says further of this conversation: "He said he had been talking to Rody about it and told him he would stay with him. He said Mrs. Bryant was his wife and he did not propose to see her put out. He said she had not treated him right, but he was dissatisfied with the way she treated the child, and went on talking that way."

The person designated as "Rody" was the escort of Mrs Lee, and not of Mrs. Bryant. There was no attempt to exclude anyone from the ball-room, but later in the evening plaintiff in error found the "trouble" which is the occasion of this prosecution, in a different way. He appeared upon the floor of the ball-room while a waltz was going on, and remarked repeatedly, in the hearing of several of the dancers, and among others of Chester D. Chrisman and Mrs. Bryant, that he thought all of certain classes of persons, whom he characterized by very vile terms, indicating both males and females, had been ordered out of the house. None of these facts, so far as stated, are denied by plaintiff in error, who testified as a witness in his own behalf. On his cross-examination he is asked: "Did you make a remark to the effect that the whores and pimps were to be kept out of the hall?" He says he might have made this remark to Tway--don't know as he made the remark to keep them out of the hall, but out of town--that he...