Evanson v. State
| Decision Date | 26 February 1976 |
| Docket Number | No. 4507,4507 |
| Citation | 546 P.2d 412 |
| Parties | Gary L. EVANSON, Appellant (Defendant below), v. The STATE of Wyoming, Appellee (Plaintiff below). |
| Court | Wyoming Supreme Court |
T. Michael Golden, Brimmer, MacPherson & Golden, Rawlins, signed the brief and appeared in oral argument on behalf of the appellant.
V. Frank Mendicino, Atty. Gen., and William M. Sutton, Senior Asst. Atty., Gen., Cheyenne, signed the brief, and William M. Sutton appeared in oral rgument on behalf of the appellee.
Before GUTHRIE, C. J., and McCLINTOCK, RAPER, THOMAS and ROSE, JJ.
Upon receiving a call that there was a man in west Rawlins wielding a gun and chasing two other men, a deputy sheriff went to the scene. The appellant-defendant in this case was pointed out to the deputy as the individual about whom the complaint was made and the deputy approached him and asked for identification. The undersheriff arrived and the defendant's automobile searched. Upon a firearm being discovered, defendant bolted and ran. The deputy and undersheriff, going different directions, gave chase and caught up with the defendant at a gasoline bulk plant. He was apprehended on the roof of a building and, when brought to the ground, was ordered to get face down. The deputy, the only one present at the time, placed a handcuff on defendant's right wrist and was bringing the cuffed hand around behind defendant's back when the defendant suddenly stood up and pulled an automatic pistol. At this moment, the deputy stood holding the handcuff, the other end of which was attached to the defendant. The appellant pointed the pistol directly at the deputy's stomach, who dropped the hand-cuff and went for his own gun. The defendant then ordered, 'Don't do it,' and attempted to squeeze the trigger of the handgun. The deputy, while the defendant's attention was briefly averted, seized the opportunity and dove under a nearby trailer. The defendant began to run, the deputy drew his own weapon and fired two shots at him, one of which struck the defendant in an elbow, as later learned. The defendant disappeared around a building. The deputy went around one side and the undershriff, who now had come on the scene, went around the other side of the building, coming up behind the defendant. At that time the defendant was holding the pistol in his left hand with an ammunition clip in his right hand and was trying to push a shell out of the top of the clip. The undersheriff aimed a shotgun at the defendant, ordering him to drop his gun. The pistol and clip were dropped by the defendant. An examination of the clip revealed a nicked cartridge case indicating that it had apparently jammed and, for that reason, did not fit quite right in the gun but inspection indicated that it would fit the weapon perfectly.
The defendant was charged with violation of § 6-69, W.S.1957:
'Whoever perpetrates an assault, or assault and battery, upon any human being with intent to commit a felony, shall be imprisoned in the penitentiary not more than fourteen years.'
The information alleged violation of § 6-69, but was conched in such terms that it would also embrace § 6-70B, W. S.1957, Laws, 1965, Ch. 165, § 1, which section then provided as follows:
'Whoever, while armed with a dangerous or deadly weapon, 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.'
The latter section, subsequent to the offense charged in this case, was amended by adding the phrase 'including an unloaded firearm,' following the word 'weapon.' (Laws, 1975, Ch. 70, § 1.) The amendment is inapplicable to any consideration of this appeal. The defendant was tried to a jury, a verdict of guilty of aggravated assault under § 6-70B returned and the defendant was sentenced to the Wyoming State Penitentiary. The State did not allege in the information § 6-70B as a provision of the criminal statutes violated.
In this appeal, the defendant claims the following errors in the district court:
1. The trial court's instruction that aggravated assault proscribed by § 6-70B, W.S.1957, 1975 Cum.Supp., as amended, Laws, 1965, Ch. 165, § 1, is a lesser included offense of assault and battery with the intent to commit a felony proscribed by § W.S.1957, erroneously stated the law in that under the facts of this case aggravated assault while armed with a deadly weapon is not a lesser included offense.
2. The trial court refused to give defendant's offered instruction to the effect that the gun in question must be loaded at the time of the alleged assault.
3. The State's evidence was insufficient to support the jury's verdict of guilty of the crime of aggravated assault under § 6-70B, W.S.1957, as amended.
The information charged that the defendant at a time and place:
'* * * did unlawfully and feloniously attempt to commit a violent injury upon the person of Lin L. Bashford, he, the said Gary L. Evanson, then and there having the present ability to commit said injury, by then and there unlawfully, feloniously, purposely and with premeditated malice, shooting at the said Lin L. Bashford with a certain .22 caliber automatic pistol then and there loaded with ammunition, which the said Gary L. Evanson then and there had and held in his hand, with intent then and there and thereby him, the said Gary L. Evanson, unlawfully, feloniously, purposely and with premeditated malice, to kill and murder the said Lin L. Bashford, all in violation of Section 6-69, Wyoming Statutes, 1957.'
No reference to § 6-70B we made in the information.
After defining for the jury murder in the first degree, murder in the second degree, involuntary manslaughter, aggravated assault and simple assault, the jury was instructed that if it should find the defendant not guilty of assault to commit murder in the first degree, to then in a like manner successively, one at a time, consider assault with intent to commit murder in the second degree and assault to commit involuntary manslaughter, then:
'If you should determine from the evidence introduced in the case that the defendant is not guilty of a felonious assault with intent to commit murder in the first or second degrees or manslaughter, then again the law permits you to determine whether the defendant is guilty beyond a reasonable doubt of aggravated assault, as defined.
'Again, a lesser included offense which the law permits you to consider is whether the defendant is guilty beyond a reasonable doubt of simple assault as defined herein if you should determine that he is not guilty of aggravated assault.'
The jury in order to find the defendant guilty of a crime defined at any step was reuired to do so beyond a reasonable doubt. It was further explained that if the jury found the defendant did not commit any of the offense, he must be acquitted.
Such form of instruction is known as a step instruction 1 designed to permit a jury to step by step consider a defendant's guilt from the most serious primary charge, descending through each included offense to the least serious. Rule 32(c), W.R.Cr.P., specifically authorizes a jury to consider included offenses:
'The defendant may be found guilty of an offense necessarily included in the offense charged or of an attempt to commit either the offense charged or an offense necessarily included therein if the attempt is an offense.'
This provision is identical to Rule 31(c) of the Federal Rules of Criminal Procedure. 2
The techinique adopted by the trial judge in presenting included offenses to the jury is an accepted one. In Fuller v. United States, 1968, on rehearing, 132 U.S.App.D.C. 264, 407 F.2d 1199, 1227-1228, cert. den. 393 U.S. 1120, 89 S.Ct. 999, 22 L.Ed.2d 125, the court discussed the doctrine of lesser included offenses and explained what it considered to be the proper procedure for presenting them to the jury:
* * *'
It should be marked that the rule uses the expression 'an offense necessarily included in the offense charged.' In Fuller, the court set out in footnote 28, p. 1228 of its opinion, what it considered to be a precise analysis of what constitutes a necessarily included offense, found in Model Penal Code § 1.07(4), which defines an offense as included when '(a) it is established by proof of the same or less than all the facts required to establish the commission of the offense charged; or
'(b) it consists of an attempt or solicitation to commit the offense charged or to commit an offense otherwise included therein; or
'(c) it differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property or public interest or a lesser kind of culpability suffices to establish its commission.'
The Fuller court on the same page gave what it referred to as the customary definition:
'* * * A lesser included offense is one which is necessarily established by proof of the greater offense, and which is properly submitted to the jury, should the prosecution's proof fail to establish guilt of the greater offense charged, without necessity of multiple indictment.'
It was put in a little different way by the same court in Kelly v. United States, 1966, 125 U.S.App.D.C. 205, 370 F.2d 227, 228, cert. den.388 U.S. 913, 87 S.Ct. 2127, 18...
To continue reading
Request your trial
-
Krucheck v. State
...as to the elements of first-degree murder, second-degree murder, and manslaughter, both voluntary and involuntary. In Evanson v. State, Wyo., 546 P.2d 412, 416 (1976), this court pointed out that for a lesser offense to be " 'necessarily included' " 3 in the offense charged, it must be such......
-
Jahnke v. State
...(1915); Nicholson v. State, 18 Wyo. 298, 106 P. 929 (1910); and Cook v. Territory, 3 Wyo. 110, 4 P. 887 (1884). See also Evanson v. State, Wyo., 546 P.2d 412 (1976); State v. Gonzales, 46 Wyo. 52, 23 P.2d 354 (1933); Ivey v. State, 24 Wyo. 1, 154 P. 589 (1916); and Brantley v. State, 9 Wyo.......
-
Warren v. State
...v. State, 580 P.2d 1150 (Wyo.1978); Fuller v. State, 568 P.2d 900 (Wyo.1977); Richmond v. State, 554 P.2d 1217 (Wyo.1976); Evanson v. State, 546 P.2d 412 (Wyo.1976); Oldham v. State, 534 P.2d 107 (Wyo.1975); Martinez v. State, 511 P.2d 105 (Wyo.1973); Moss v. State, 492 P.2d 1329 (Wyo.1972)......
-
Crozier v. State
...murder: " * * * We have noted that the term 'maliciously' embraces, amongst other things, the element of unlawful intent. Evanson v. State, Wyo., 546 P.2d 412 (1976); Elliott v. State, 47 Wyo. 36, 30 P.2d 791 (1934). I conclude that when the legislature incorporated the term 'maliciously' i......