Chacon v. Territory.
| Decision Date | 24 August 1893 |
| Citation | 34 P. 448,7 N.M. 241 |
| Parties | CHACONv.TERRITORY. |
| Court | New Mexico Supreme Court |
OPINION TEXT STARTS HERE
Appeal from district court, Grant county; John R. McFie, Judge.
Petronilo Chacon was convicted of assault, and appeals. Affirmed.
A person indicted for a felonious assault with a pistol may be convicted of a simple assault and battery with such weapon, the former offense necessarily including the latter, which has all the elements of the former offense at common law found therein.
James S. Fielder, for appellant.
Edward L. Bartlett, Sol. Gen., for the Territory.
At the April term, 1892, of the Grant county district court, Petronilo Chacon was indicted and tried for a felonious assault with a loaded pistol upon one Geronimo Portillo. The verdict was guilty of a simple assault and battery. From the judgment entered upon the verdict, defendant has appealed to this court.
The chief reasons assigned for reversal are: (1) Convicting defendant of a simple assault and battery upon an indictment charging him with an assault with a deadly weapon; (2) improper and abusive language used by the prosecuting attorney in his address to the jury; (3) errors committed by the court in the reception and rejection of evidence, and in giving and refusing to give certain instructions to the jury.
The indictment was perhaps drawn under section 3, c. 30, Laws 1887. That section reads: “Any person who shall unlawfully assault or strike at another with a deadly weapon, upon conviction thereof, shall be punished by fine not exceeding one thousand dollars, or by imprisonment at hard labor in the county jail or territorial penitentiary not exceeding three years, in the discretion of the court or jury trying the same.” Section 21, c. 17, Laws 1889, provides: “Every person convicted of the offense of assault and battery shall be punished by a fine of not less than five dollars,” etc.; and section 22 of the same chapter reads: “Every person who, in a rude, insolent or angry manner, shall unlawfully touch another, shall be deemed guilty of an assault and battery.” The indictment charges “that Petronilo Chacon *** did with a certain pistol loaded with powder and ball *** unlawfully and feloniously make an assault on one Geronimo Portillo, and at and against the said Portillo unlawfully and feloniously discharged said pistol,” thereby grievously wounding him upon the head with the bullet shot from the pistol. It appears to us that the aggravated assault so charged necessarily includes a common-law assault and battery. We fail to see much force or reason in appellant's contention that there is a marked difference between a donious assault with a deadly weapon and an assault committed with intent to murder, maim, or do great bodily harm with such weapon. The fair test in a case of this kind ought to be, in our opinion, is the crime of which defendant was convicted necessarily included in the crime charged? We hold that it is, and, while the statutory assault and battery above defined may not be included in the charge contained in the indictment, all the elements of such offense at common law are found therein. The two forms coexist in this territory. It is not important that the greater offense charged be statutory or common law, provided it necessarily includes the crime of which defendant has been found guilty. Bryant v. State, 41 Ark. 359.
Appellant complains that the harsh and offensive language used by one of the attorneys for the prosecution in addressing the trial jury as to the character of the defendant, and to which he objected at the time, was...
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