Harris v. State

• Citation: 177 P. 122,15 Okla.Crim. 369
• Decision Date: 11 January 1919
• Docket Number: A-2953.
• Parties: HARRIS v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

177 P. 122

15 Okla.Crim. 369

HARRIS v. STATE.

No. A-2953.

Court of Criminal Appeals of Oklahoma

Jan. 11, 1919

Syllabus by the Court.

"Battery" includes assault, but "assault" does not include battery. When the assault culminates in a battery, the offense is assault and battery, and the prosecution should be commenced for that grade of assault and battery which is reasonably supported by the state's evidence, and not for that grade of assault only.

[Ed Note.-For other definitions, see Words and Phrases, First and Second Series, Assault; Battery.]

Where the information, by reasonable intendment only, charges an assault with intent to kill, and the proof both on the part of the state and the defendant shows that a battery was committed in addition to the felonious assault, upon proper motion, the court should advise the jury to acquit upon the ground of variance and direct that the defendant be held to answer the higher offense.

Appeal from District Court, McCurtain County; C. E. Dudley, Judge.

Sam Harris was convicted of the crime of assault with intent to kill and sentenced to serve a term of three years in the state penitentiary, and he appeals. Reversed.

Hosey & Jones, of Idabel, and A. M. Stewart, of Mangum, for plaintiff in error.

S. P Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.

MATSON J.

"On the 1st day of February, 1915, information was filed in the district court of McCurtain county, Okl., charging Sam Harris with assault with intent to kill one Norman O'Neal. The allegations in the information being as follows:

"'Now comes E. G. Nelson, the duly qualified and acting county attorney, in and for McCurtain county, state of Oklahoma, and gives the district court of McCurtain county, state of Oklahoma, to know and be informed that Sam Harris did in McCurtain county, and in the state of Oklahoma, on or about the 15th day of March, in the year of Our Lord one thousand nine hundred and fourteen, and anterior to the presentment hereof, commit the crime of assault with intent to kill, in the manner and form as follows, to wit:

"'The said Sam Harris did, in the county of McCurtain and state of Oklahoma, on or about the 15th day of March, 1914, unlawfully, willfully and feloniously make an assault on one Norman O'Neal with a certain pistol and with a certain slingshot, then and there held in the hands of him, the said Sam Harris with the unlawful intent on the part of him, the said Sam Harris, to kill him, the said Norman O'Neal, contrary to the form of the statutes, in such case made and provided, and against the peace and dignity of the state.'

"The case was tried on September 13, 1916, on the information filed over the objection of the defendant as to the sufficiency of the information. After the introduction of evidence the defendant moved for a peremptory instruction in favor of the defendant for the reason that the testimony did not sustain the allegations contained in the information, for the reason that the testimony did not show a public offense and for the reason that the proof and allegations did not correspond. The motion was overruled by the court, exception saved."

Among the assignments of error urged as grounds for a reversal of this judgment is that the court should have sustained the defendant's motion to direct a verdict in his favor because of a fatal variance between the allegations of the information, and the proof adduced upon the trial.

If it may be said that the foregoing information by any reasonable intendment charges a crime in the nature of a felony, it only charges an assault with intent to kill, or an assault of a lower grade necessarily included within the charge of assault with intent to kill.

The evidence introduced upon the trial shows clearly that, if the defendant is guilty of any crime, it is that of assault and battery with intent to kill, or some lesser grade of assault and battery. There is no conflict between the testimony of the witnesses on behalf of the state and that of those introduced in behalf of the defendant as to the fact that a battery was committed.

In the case of People v. Helbing, 61 Cal. 620, the Supreme Court of California said:

"It is contended, on behalf of the appellant, that the conviction is

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