Hampton v. State
| Decision Date | 06 January 1977 |
| Docket Number | No. 4580,4580 |
| Citation | 558 P.2d 504 |
| Parties | Hal HAMPTON, Appellant (Defendant below), v. The STATE of Wyoming, appellee (Plaintiff below). |
| Court | Wyoming Supreme Court |
Gary L. Shockey, Sr. Law Student Intern, and Gerald M. Gallivan, Laramie, for appellant.
V. Frank Mendicino, Atty. Gen., H. J. Arnieri, Asst. Atty. Gen., James L. Edwards, Legal Intern, Cheyenne, and James N. Wolfe, Sheridan County Atty., Sheridan, for appellee.
Before GUTHRIE, C. J., and McCLINTOCK, RAPER, THOMAS and ROSE, JJ.
An Information was filed against Hal Hampton in the District Court charging him in two counts with violations of § 6-70 B, W.S., which proscribes the malicious perpetration of an assault or an assault and battery upon any human being while armed with a dangerous or deadly weapon. 1 The first count in the Information charged an assault and battery upon a human being by striking him about the face with what appeared to be an axe handle. The second count of the Information charged the malicious perpetration of an assault by pointing a pistol at a human being. A trial to a jury resulted in Hampton's conviction on Count I of the Information, and his acquittal on Count II of the Information. Hampton appeals from the Judgment and Sentence of the Court, entered upon the verdict of the jury, pursuant to which Hampton was sentenced to not less than one year and not more than four years in the State Penitentiary.
The fact underlying Hampton's conviction are found in events which occurred in and near the Burlington Northern Railroad Depot in Sheridan, Wyoming. At about the hour of 5:00 p. m. one afternoon Hampton became involved in an argument with an official of the railroad which resulted in a first fight between those two. The railroad official prevailed in the fight, and Hampton left the premises. Not long after that, when the railroad official left the depot with other persons Hampton confronted him with a pistol which Hampton cocked and pointed at him while stating an intention to kill him. Hampton was persuaded, however, to withdraw from this confrontation.
Thereafter, the railroad official entered an automobile, sitting in the right side of the front seat. Another employee of the railroad entered the driver's side of the vehicle. Hampton then reappeared with what Hampton himself testified was a Handyman jackhandle. He proceeded to use this jackhandle to pound upon the automobile in which the railroad official was seated striking both the metal and glass surfaces. An estimate of the cost of repairs to the vehicle entered in evidence shows damage to the metal surfaces of the vehicle in the total amount of $139.44.
When the employee who was in the driver's seat observed what was occurring he opened the door and remonstrated with Hampton. Hampton then went around to that side of the vehicle, and struggled with that employee in an attempt to enter the vehicle while, in the meantime, jabbing with the jackhandle at the railroad official with whom he had earlier fought. He did make contact with the official's forehead causing a laceration requiring three or four stitches to close. Shortly thereafter Hampton's father appeared upon the scene, and persuaded Hampton to desist from his activities.
The Handyman jackhandle was not entered into evidence, and is not a part of the record in this case. It was described by the several witnesses as a short club, an axe handle or stick, a jackhandle, a pick handle, and a spiking mall handle, with dimensions of from 22 to 24 inches long to one-half to three feet long, and a diameter of a couple of inches. One witness stated that he believed that if swung hard enough the jackhandle would have been capable of breaking a side window on the automobile.
In submitting the first count of the Information to the jury the District Court initially instructed on the elements of assault and battery with a dangerous or deadly weapon. The court then instructed the jury that the crimes of aggravated assault and battery without a dangerous or deadly weapon and assault and battery are lesser included offenses in the crime of assault and battery with a dangerous or deadly weapon. Additional instructions were given setting forth the elements of assault and battery, and explaining certain aspects of the charged crime and the lesser included offenses. The instructions encompassed a definition of 'grievous,' in accordance with State v. Woodward, 69 Wyo. 262, 240 P.2d 1157 (1952), as follows:
'You are instructed that the word 'Grevious' (sic) means causing greif (sic) or sorrow, painful, afflective (sic), hard to bear, offensive, harmful.'
The jury also was advised:
'You are further instructed that when an instrument usually not to be considered dangerous or deadly is used in such a mammer (sic) that it is capable of inflicting grevious (sic) bodily harm upon another person then the instrument may be considered by you as a dangerous or deadly weapon.'
In his appeal Hampton attacks the constitutionality of the statute by claiming that it is vague and that it deprives him of his right to equal protection of the laws. He attacks the instructions given by the court with respect to the definition of dangerous and deadly weapon, and he further complains of the inadequacy of the Information to charge and the evidence to demonstrate the commission of an aggravated assault and battery with a dangerous or deadly weapon. 2
In essence Hampton claims § 6-70 B, W.S. is unconstitutionally vague due to the failure of the statute to define a dangerous or deadly weapon and to define grievous bodily harm which he asserts prevents a citizen from determining what actions are prohibited under the statute. Also with respect to his argument of vagueness Hampton relies upon the absence of standards to guide those charged with enforcement of the law contending that this results in differing applications of the statute thereby depriving him of due process of law to which he is entitled under Art. 1, § 6, Constitution of the State of Wyoming and Amendment 5, as applied to the states under Amendment 14, of the Constitution of the United States of America. In advancing his equal protection argument he asserts a deprivation of his rights under Art. 1, §§ 2 and 3 of the Constitution of the State of Wyoming which he claims is found in the failure of the statute to provide explicit standards by which the various degrees of punishment (as Hampton describes them) set forth in § 6-70, W.S. are to be invoked. He urges the proposition that the same conduct could be prosecuted under either § 6-70 A or § 6-70 B, W.S. His first two claims of error then are tied into his third claim of error by invoking the definitions given to the jury of a dangerous or deadly weapon and grievous boidly harm which Hampton argues demonstrate the vagueness and the possible inequality that he asserts with respect to the constitutionality of the statute.
The record in this case is devoid of any mention of unconstitutionality of § 6-70 B, W.S. on either the ground of vagueness or the ground of deprivation of the right to equal protection of the law. The record also fails to demonstrate any objection to the District Court's instructions such as that contemplated by Rule 31, W.R.Cr.P. The general rule is that these contentions will not be considered on appeal since they were not called to the attention of the trial court. Moore v. State, Wyo., 542 P.2d 109 (1975); Connor v. State, Wyo., 537 P.2d 715 (1975); Booth v. State, Wyo., 517 P.2d 1034 (1974); Wright v. State, Wyo., 466 P.2d 1014 (1970); State v. Rideout, Wyo., 450 P.2d 452 (1969); State v. Woodward, supra. They may be considered by this court only if they come within the procedural exception found in Rule 49(b), W.R.Cr.P.:
While this Court has recognized that the plain error concept must be applied to each case on its own particular facts, and any attempt to define the term 'plain error or defects affecting substantial rights' is unlikely to be helpful (Hays v. State, Wyo., 522 P.2d 1004 (1974)), still there are some accepted criteria which we invoke when a claim of plain error is presented. When review is sought under the plain error doctrine this Court must be able to discern from the record, without resort to speculation or equivocal inference, what occurred at trial, that is, we are entitled to know the particular facts. E. g., United States v. Meadows, 523 F.2d 365 (5th Cir. 1975), Sykes v. Unites States, 373 F.2d 607 (5th Cir. 1966), cert. den. 386 U.S. 977, 87 S.Ct. 1172, 18 L.Ed.2d 138 (1967); Dimmick v. State, Alaska, 449 P.2d 774 (1969). Further, the proponent of plain error must demonstrate the existence of a clear and unequivocal rule of law which the particular facts transgress in a clear and...
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