Grass v. People, 23440
| Decision Date | 29 June 1970 |
| Docket Number | No. 23440,23440 |
| Citation | 172 Colo. 223,471 P.2d 602 |
| Parties | Samuel K. GRASS and Stephen D. Roberts, Plaintiffs in Error, v. The PEOPLE of the State of Colorado, Defendant in Error. |
| Court | Colorado Supreme Court |
Edward H. Sherman, Rollie R. Rogers, Public Defenders, Denver, Thomas M. Van
Cleave, Asst. Public Defender, for plaintiffs in error.
Duke W. Dunbar, Atty. Gen., John P. Moore, Deputy Atty. Gen., for defendant in error.
Samuel Grass and Stephen Roberts were convicted of the crimes commonly known as assault with a deadly weapon (C.R.S. 1963, 40--2--34) and conspiracy to commit an assault with a deadly weapon (C.R.S. 1963, 40--7--35). Grass was thereafter sentenced to a term of from one to five years in the state penitentiary on the assault charge, and to a term of from four to ten years on the conspiracy charge, the terms to be served concurrently. Roberts was sentenced to an indeterminate term in the state reformatory on each charge, his sentences also to be served concurrently.
By this writ of error both Grass and Roberts seek reversal of the convictions thus suffered. The basic position of both Grass and Roberts is that the evidence is legally insufficient to support their conviction on either of the two counts. Brief reference to the evidence adduced upon trial will serve to place the controversy in focus.
Grass and Roberts, along with several others, were driving along East Colfax Avenue in Denver in the early morning hours avowedly 'looking for trouble.' There was testimony to the effect that Grass and Roberts had both indicated that they wanted to fight 'anybody they could find.' The car in which Grass and Roberts were riding then came upon Hooper and his companion, who in the early morning hours were walking along Colfax Avenue near Quebec on their way back to Lowry Air Base. Grass and Roberts together with a third party got out of the car and accosted the pair, with the third party squaring off with Hooper's friend, as Grass and Roberts proceeded to challenge Hooper.
The testimony from several witnesses indicated that without any provocation whatsoever Grass struck Hooper in the face with his fist. Roberts then grabbed hold of Hooper's arms and Grass proceeded to rain blows on Hooper. Hooper testified that as he fell to the ground he distinctly recalled Grass kicking him squarely in the face with his shoe. Hooper then lost consciousness and about his next real recollection is 'coming to' in the hospital. Hooper testified as to the extent of his injuries, which included a broken nose and numerous lacerations around the mouth and under the chin. Hooper's companion suffered a broken jaw in the affray.
The driver of the vehicle in which Grass and Roberts were riding appeared as a witness for the People. He testified that after Grass initially struck Hooper in the face, Roberts 'bent and grabbed him in the back, pulled him on the ground, and they started kicking him.' He specifically stated that both Grass and Roberts kicked Hooper in the face as he lay inert on the ground. It was at this juncture in the proceedings that a passing motorist happened on the scene and summoned the police. Grass and Roberts then jumped in the car in which they had been riding and drove off. They were arrested a short time later by the police.
As indicated, the main ground for reversal is the contention that the evidence does not support the conviction of either defendant for either of the crimes of which they now stand convicted, namely, assault with a deadly weapon, or conspiracy to commit the same. We shall first concern ourselves with the assault charge.
C.R.S.1963, 40--2--34 provides, in part, that an assault 'with a deadly weapon, instrument or other thing' with an attempt to commit upon the person of another a bodily injury where no considerable provocation appears or where the circumstances of the assault show an abandoned and malignant heart, shall be adjudged to be a felony. Counsel argues here, as he did in the trial court, that the 'kicking' of another with a shoe as a matter of law does not constitute an assault with a 'deadly weapon instrument or other thing.' Hence though Grass and Roberts may well be guilty of a very vicious assault and battery, concedes counsel, they could not as a matter of law be found guilty of an assault with a deadly weapon.
The learned trial court held that under the circumstances of the case it was a jury question as to whether a shoe was or was not a 'deadly weapon, instrument or other thing' within the meaning of the assault statute. Accordingly, by instruction, the trial court generally advised the jury that a shoe was not in and of itself a deadly or dangerous weapon and that in determining whether an instrument, not inherently deadly or dangerous, assumes the characteristics of a deadly weapon the jury should consider the nature of the instrument or thing, the manner of its use, the location on the body of the injuries inflicted and the extent of such injuries. We agree with the trial court's handling of this matter.
This is apparently a matter of first impression in Colorado and admittedly there is some split of authority in other jurisdictions. The defendants rely strongly upon Wilson v. State, 162 Ark. 494, 258 S.W. 972, 33 A.L.R. 1182. In the Wilson case the majority held that an assault with a shoe was not an assault with a deadly weapon within the meaning of the Arkansas statute. It is to be noted that there was a strong and well-reasoned dissent in the Wilson case and this dissent would now appear to be the majority rule on the subject. Accordingly we quote from that dissent as follows:
'If any person assault another with a deadly weapon, instrument or other thing, with the intent to inflict upon the person of another a bodily injury where no considerable provocation appears, or where the circumstances of the assault show an abandoned and malignant disposition, he shall be adjudged guilty of a misdemeanor,...
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