Dunn v. State

• Court: Arizona Supreme Court
• Writing for the Court: LOCKWOOD, J.
• Citation: Dunn v. State, 50 Ariz. 473, 73 P.2d 107 (Ariz. 1937)
• Decision Date: 08 November 1937
• Docket Number: Criminal 861
• Parties: JOE DUNN, Appellant, v. STATE OF ARIZONA, Respondent

73 P.2d 107

50 Ariz. 473

JOE DUNN, Appellant, v. STATE OF ARIZONA, Respondent

Criminal No. 861

Supreme Court of Arizona

November 8, 1937

APPEAL from a judgment of the Superior Court of the County of Maricopa. John P. Clark, Judge. Judgment reversed and cause remanded with instructions.

Mr Marshall W. Haislip, for Appellant.

Mr. Joe Conway, Attorney General, Mr. W. E. Polley, and Mr. J. M Johnson, his Assistants, and Mr. Jonn W. Corbin, County Attorney, for Respondent.

OPINION

LOCKWOOD, J.

Joe Dunn, hereinafter called defendant, was convicted of the crime of aggravated assault and has brought this case before us for review.

There are five assignments of error, but we think it necessary to consider only the first, which is that the court overruled defendant's special demurrer to the information, made on the ground that it charged more than one offense. Section 4980, Revised Code 1928, reads in part as follows:

"One offense only may be charged; means; time; party injured. The indictment or information must charge but one offense."

The charging part of the information is as follows:

"In the name and by the authority of the State of Arizona Joe Dunn and Norris C. Browning is accused this 27th day of March, 1937, by the County Attorney of Maricopa County, State of Arizona, by this information, of the crime of assault with a deadly weapon, a felony, committed as follows, to-wit:

"The said Joe Dunn and Norris C. Browning on or about the 20th day of March, 1937, and before the filing of this information at and in the County of Maricopa, State of Arizona, did then and there wilfully, unlawfully and feloniously, with a certain deadly weapon, to-wit: a knife, which they, the said Joe Dunn and Norris C. Browning, then and there had and held in their hands, in and upon the body and person of one Loren La Prade there being, make an assault; they, the said Joe Dunn and Norris C. Browning, being then and there adult male persons, and he, the said Loren La Prade, being then and there a child."

It is claimed by defendant that this charges both the crime of assault with a deadly weapon and that of aggravated assault. Assault with a deadly weapon is described by the Code of 1928 as follows:

"§ 4615. Assault with deadly weapon; by life prisoner; punishment. Every person who commits an assault upon the person of another with a deadly weapon or instrument, or by any means or force likely to produce great bodily injury."

The facts necessary to constitute aggravated assault appear in the following section:

"§ 4613. Aggravated assault and battery defined; punishment. An assault or battery committed under any of the following circumstances, is aggravated: When the person committing the offense goes into a private home and is there guilty of assault or battery; when committed by a person of robust health or strength upon one who is decrepit; when committed by an adult male upon the person of a female or child, or by an adult female upon the person of a child; when the instrument or means used is such as to inflict disgrace upon the person assaulted, as an assault or battery with a whip or cowhide; when a serious bodily injury is inflicted upon the person assaulted; when committed with a premeditated design and by the use of means calculated to inflict great bodily injury."

The question before us, therefore, is whether the information did charge both the offense set forth in 4615, supra, and that set forth in 4613, supra. The requisites of an information, in order that the facts pleaded may state a public offense, are as follows:

"§ 4982. Essentials of sufficiency. The indictment or information is sufficient, if it can be understood therefrom: ... that the act or omission charged as the offense is clearly and distinctly set forth in ordinary and concise language, and in such manner as to enable a person of common understanding to know what is intended, and as to enable the court to pronounce judgment upon a conviction, according to the right of the case." (Italics ours.)

Does the information above quoted set forth the essential elements of the two crimes of assault with a deadly weapon and of aggravated assault, so as to enable the court to pronounce judgment upon a conviction of either offense? If it does, two separate crimes are charged. The language "did then and there wilfully, unlawfully and feloniously, with a certain deadly weapon, to-wit: a knife, which they, the said Joe Dunn and Norris C. Browning, then and there had and held in their hands, in and upon the body and person of one Loren La Prade, there being, make an assault" certainly sets forth all of the essential elements of the crime of assault with a deadly weapon, and, upon proof of the facts thus set forth, the jury would undoubtedly have been justified in finding defendant guilty of the crime described in section 4615, supra, to wit, assault with a deadly weapon. And this is true, even though there were no attempt to prove the allegations "they, the said Joe Dunn and Norris C. Browning, being then and there adult male persons, and, the said Loren La Prade, being then and there a child." On the other hand, if we strike from the information the following words, "with a certain deadly weapon, to-wit: a knife, which they, the said Joe Dunn and Norris C. Browning, then and there had and held in their hands," leaving remaining the language

"did then and there wilfully, unlawfully and feloniously... in and upon the body and person of one Loren La Prade, there being, make an assault; they, the said Joe Dunn and Norris C. Browning, being then and there adult male persons, and he, the said Loren La Prade, being then and there a child,"

proof of such facts only would sustain a conviction of aggravated assault. It is evident, then, that the information did, on its face, charge two separate and distinct offenses. Indeed the State does not seriously question this, but urges that it falls within an exception to the general rule that only one offense must be charged. This exception may be stated as follows: An information does not violate the rule prohibiting the charging of two offenses by setting up several related acts, all of...