Elliott v. State, 1831

• Decision Date: 20 March 1931
• Docket Number: 1831
• Parties: ELLIOTT v. STATE
• Court: Wyoming Supreme Court

30 P.2d 791

47 Wyo. 36

ELLIOTT v. STATE

No. 1831

Supreme Court of Wyoming

March 20, 1931

ERROR to District Court, Natrona County; C. O. BROWN, Judge.

B. X Elliott was convicted of aggravated assault and battery, and he brings error.

Affirmed.

For the plaintiff in error there was a brief by Clarence G Cypreansen and W. B. Holliday, of Casper, and oral argument by Mr. Holliday.

Defendant's motion and arrest of judgment should have been sustained. This case is distinguishable from Brantley v. State, 9 Wyoming 102. It was not held in that case that under a charge for assault with felonious intent, the jury might return a verdict for aggravated assault. A criminal prosecution is not sustained by evidence tending to prove an offense different from the one charged. "Aggravated Assault" is defined by statute. 32-210, R. S. 1931. It is not a felony. We do not believe that a verdict for a malicious assault is supported by a charge of intent to commit a felony only. It is vain to prove what is not alleged. Hughes Datum Post, Vol. 3, Grounds and Rudiments of Law, 12; 14 R. C. L. 185, 210, 211. A motion in arrest of judgment may be made for the first time in the appellate court. 14 R. C. L. 203. The word "wilful" involves a deliberate purpose. A malicious act involves hatred or ill will towards the party injured. 4 Words & Phrases (2d Ed.) 1307. The element of malice was not charged in this information and being an element of aggravated assault and battery, it was error to instruct on aggravated assault and battery. 14 R. C. L. 782-785. Assault with felonious intent is not charged in the information. Sec. 32-207, R. S. 1931. The information is fatally defective and insufficient to charge an offense, in that it does not set out the elements showing and constituting murder. 13 R. C. L. 896. The information must charge the offense described by statute. 14 R. C. L. 185. Young v. Territory (Okla.) 58 P. 724 725. The court erred in denying defendant's request for a continuance on the ground of absent witnesses who had been subpoenaed. The motion for a new trial was denied below on the ground that defects in the information had been waived by a demurrer having been filed. Grover v. Lovella, 21 Wyoming 227. The above case was a civil action, but there is no distinction between civil and criminal pleadings as to defective allegations which are aided by verdict at common law. 14 R. C. L. 212; Spaugh v. Peterson, 244 P. 224; Lusk Lumber Co. v. Ind. P. C. et al, 252 P. 1030. We submit that the general principles we contend for, and the statutes relative thereto, have been carefully reviewed in the following Wyoming cases. McGinnis v. State, 16 Wyo. 72; Koppala v. State, 15 Wyo. 398; Hall v. State, 27 Wyo. 224; Anderson v. State, 27 Wyo. 345; Richey v. State, 28 Wyo. 117; State v. Kusel, 29 Wyo. 287; State v. Baish, 32 Wyo. 136; State v. Sorenson, 34 Wyo. 90; State v. Spiegel, 39 Wyo. 309; State v. White, 41 Wyo. 256; State v. Aragon, 41 Wyo. 308. Of the above, the McGinnis case is worthy of careful attention, and we believe is controlling in support of our contention that the information in the case at bar is insufficient to charge the offense for which defendant was convicted.

On behalf of the State there was a brief by Ray E. Lee, Attorney General, O. O. Natwick, Deputy Attorney General, and Wm. C. Snow, Assistant Attorney General, and oral argument by Mr. Natwick.

Only the sufficiency of the information can be considered in this case. 33-908, R. S. 1931; Patrick v. State, 17 Wyo. 260. It is apparent that the information is sufficient under the ruling in Brantley v. State, 9 Wyo. 102; Woodworth v. State, 145 Ind. 276; Campton v. State, 140 Ind. 442; Richey v. State, 28 Wyo. 117; State v. Hall, 27 Wyo. 224; White v. State, 23 Wyo. 130; Koppala v. State, 15 Wyo. 398; Wilbur v. Territory, 3 Wyo. 268. In State v. Baish, 32 Wyo. 136, it is held that error in denying a motion to dismiss was waived by plea of not guilty. On the question of waiver, we cite: State v. Sorenson, 34 Wyo. 90; State v. Spiegel, 39 Wyo. 309; White v. State, 41 Wyo. 256. The information follows the statute 32-207 R. S. 31 literally and is sufficient. Gillespie v. State, 9 Ind. 380; Polson v. State, 137 Ind. 519. Under an indictment charging an assault with intent to murder, defendant may be convicted of assault with intent to commit a lower degree of murder than that charged, or assault and battery with such intent * * * although there is no averment of wilfulness or malice or felonious or aggravated assault. 12 Stand. Ency. of Pro. 578. A charge of assault upon the person is sufficient to charge an assault upon a human being. United States v. Crook, 25 F. Cas. 695; Morton v. Tel. Co. 41 S.E. 484; State v. Douglas (Kan.) 37 P. 172. Defendant has lost his right to appeal, his petition in error not having been filed in the Supreme Court within one year from the date of entry of judgment. Griffis v. State, 23 Wyo. 303; 5 C. J. 771. A defective allegation as to the alleged assault may be cured by the verdict. Padgett v. State, 78 N.E. 663.

Clarence G. Cypreansen and W. B. Holliday in reply.

The judgment entered March 24, 1931, did not become final within the contemplation of Section 33-1201, R. S. 31, until June 10, 1932, the date of the order over-ruling motion for a new trial. Riordan v. Horton, 16 Wyo. 363; Conradt v. Leeper, 13 Wyo. 99; Toltec Livestock Co. v. Gillespie, 20 Wyo. 314. "Aggravated Assault" is defined by statute. 32-210, R. S. 1931. The information does not charge an offense under that statute.

RINER, Justice. KIMBALL, C. J. and BLUME, J., concur.

OPINION

RINER, Justice.

On March 24, 1931, B. X. Elliott, as defendant, was found guilty, by the verdict of the jury in the District Court of Natrona County, of aggravated assault and battery, and thereon was given a jail sentence of two months and adjudged to pay a fine of $ 100. From this judgment and sentence, he prosecutes this proceeding in error.

The case is before us upon the information, verdict, judgment, and sentence of the court, and a bill of exceptions containing only (1) the judgment and sentence aforesaid, (2) the motion for a new trial filed by Elliott March 31, 1931, (3) the order of the District Court overruling said motion, with due exception reserved thereto, and (4) the court's order granting additional time within which to prepare and present the defendant's bill of exceptions. None of the trial proceedings, neither the evidence nor the instructions of the court in the case appear in said bill.

The petition in error sets forth two alleged errors, the first of these being that the District Court erred in overruling plaintiff in error's motion for a new trial, and the second that "the judgment and sentence of the court is for an offense with which said defendant, --this plaintiff in error, --was not charged at all, or was not sufficiently charged."

It will be proper to determine first, whether the denial of the motion for the new trial was error. The motion contained three alleged grounds. Of these, one sets forth that, during the trial, the court refused to grant the defendant a continuance, on account of the absence of a defense witness. As heretofore indicated, the proceedings had at the trial being not incorporated in the bill of exceptions, it is impossible for us to determine the merits of this ground. The rule is that "refusal to grant a continuance, on the ground of the absence of witnesses, is not a ground for reversal, where no substantial rights of the defendant are prejudiced thereby." 17 C. J. 281. The motion for a new trial alone shows no prejudice suffered by the defendant through the court's action in the premises. For aught that appears here, the facts which the defendant desired to prove by this witness were already sufficiently established by the testimony of other witnesses. If this were true, there would be no prejudice accruing to the defendant. 17 C. J. 281.

Another ground of the motion for a new trial is that the District Court erred in declining to sustain the defendant's motion in arrest of judgment, said last mentioned motion reading:

"Comes now the defendant B. X. Elliott and moves the Court for an arrest of Judgment in the above entitled case for the reason and upon the grounds, that the information in this case failed to state facts sufficient to constitute an offense punishable under the laws of the State of Wyoming."

The third ground upon which a new trial was requested was that the verdict of the jury was contrary to law, in that the information filed in the case "did not and does not state a cause of action against defendant punishable under the laws of the State of Wyoming."

These two grounds may be considered together as raising the question whether the information, when attacked by motion in arrest of judgment, failed to state facts constituting an offense under our law. The information filed by the County and Prosecuting Attorney of Natrona County against the defendant charges that:

"B. X. Elliott late of the County aforesaid, on or about the 16th day of February, 1931, in the County of Natrona, in the State of Wyoming, did then and there wilfully and unlawfully and feloniously perpetrate an assault and battery upon the person of T. A. Cummins with intent then and there and thereby to commit a felony, to-wit: to kill and murder the said T. A. Cummins."

It is urged for the plaintiff in error that this charge is defective in that it does not allege any assault "with intent to commit any act made a felony or a crime even, under our law," it being said that none of the elements constituting murder in either of its degrees or manslaughter are set up.

In II Wharton's Criminal Law (11th Ed.), it is stated that:

"In an...