Horn v. State
| Decision Date | 27 September 1976 |
| Docket Number | No. 4549,4549 |
| Citation | 554 P.2d 1141 |
| Parties | Maurice E. (Rick) HORN, Appellant (Defendant below), v. The STATE of Wyoming, Appellee (Plaintiff below). |
| Court | Wyoming Supreme Court |
Ted C. Frome, Afton, for appellant.
Timothy J. Judson, Asst. Atty. Gen., Cheyenne, and Robert B. Ranck, Jackson, in oral argument; and V. Frank Mendicino, Atty. Gen. and Timothy J. Judson, Asst. Atty. Gen., Cheyenne, on brief, for appellee.
Before GUTHRIE, C. J., and McCLINTOCK, RAPER, THOMAS and ROSE, JJ.
For a recitation of the relevant facts, we adopt the 'Statement of Ultimate Facts' from the appellant's brief, with very little supplementation:
On Sunday, March 10, 1974, at about 2:00 p. m., the defendant purchased a ticket and rode the aerial tram at Teton Village, Wyoming, to the top of the mountain.
Mr. Robert Fuller, a member of the Ski Patrol for Jackson Hole Ski Corporation saw Mr. Horn getting on the tram and called Denny Ash, his supervisor, who was on top of the mountain. Mr. Fuller then boarded the tram and told the defendant that if he had intentions of skiiing within the area boundaries that it was fine, he could ski there; but if he had intentions of skiing outside the area boundaries, especially Granite Canyon, as he had done before, that he should obtain a refund and not ski at all. The defendant did not reply to this statement. Fuller rode up on the tram as did Horn.
When the tram unloaded, Mr. Ash met the tram and reiterated what Fuller had said to Horn, namely, that Granite Canyon ws closed that day and if Horn had intentions of skiing this area he must abandon them.
Horn then said to Fuller, 'Nobody can tell me where I have to go.'
Fuller explained to Horn that the Ski Corporation was liable for people riding the tram and the only way he could ski outside designated areas was for him to walk up the mountain.
Fuller, Horn and Ash were then joined by Sandy Zvegintzov and Sam Miles-also Company employees.
Horn repeated that nobody could tell him where to go, and as he started to put one ski on Mr. Ash took the other ski in an attempt to restrain him from skiing in the prohibited area. While Horn was attempting to get his ski back, Fuller took his poles and when Horn asked Fuller if he had stolen his ski poles, Fuller admitted he had. Horn retrieved the ski from Ash and struck Fuller with it-the injury requiring four stitches to repair. After being struck, Fuller dropped the poles, whereupon Mr. Miles grabbed Horn from the back and held him until Ash ordered him to let him go. Horn then put his skis on and skied off into Granite Canyon, the designated closed area.
Defendant Horn's case went to the jury on charges of aggravated assault and battery, under § 6-70. (A), W.S.1957, 1975 Cum.Supp., and assault and battery, under § 6-68, W.S.1957. 1
The trial resulted in a verdict of guilty of assault and battery. On February 13, 1975, Horn was sentenced to four months in the county jail and ordered to pay a fine of $100.00.
We affirm the trial court's judgment which was entered on the verdict.
The defendant assigns the following errors for appellate consideration:
'1. There is not substantial credible evidence to support the findings of the jury.
'2. The court erred in not granting defendant's motion for acquittal at the close of the state's case, since the force used to protect the defendant's property was as a matter of law not beyond what the law allowed him.
We address assigned error No. 3 first.
The precise issue here may be delineated as follows:
Since 'unlawful' touching is one of the elements of the crime with which the defendant was charged and found guilty, is it a denial of the defendant's right to a fair trial to have failed to define the term 'unlawfully touches' to the jury?
Trial counsel did not offer an instruction requesting the court to define the term 'unlawfully' as employed in the assault and battery statute (§ 6-68, W.S.1957).
Rule 31, W.R.Cr.P., provides that the giving of instructions and the lodging of objections will be offered at the time and in the manner provided for in the Wyoming Rules of Civil Procedure. Rule 51 of the Wyoming Rules of Civil Procedure provides:
'. . . No party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection. . . .'
The rule further provides, however:
'. . . Before the argument of the case to the jury is begun, the court shall give to the jury such instructions on the law as may be necessary and same shall be in writing, numbered and signed by the judge, and shall be taken by the jury when it retires.' (Emphasis supplied)
We have held that where the required objection has not been lodged it cannot be considered upon appeal. North Central Gas Co. v. Bloem, Wyo., 376 P.2d 382, 385 (1962); Jackson v. Gelco Leasing Company, Wyo., 488 P.2d 1052, 1056 (1971); Jaramillo v. State, Wyo., 517 P.2d 490, 491 (1974); and Bentley v. State, Wyo., 502 P.2d 203, 208 (1972).
Defendant seeks to avoid the heavy hand of Rule 51, W.R.Cr.P., supra, through the invocation of Rule 49(b), W.R.Cr.P., which provides:
Admittedly, 'unlawful touching' is an element of the crime of assault and battery under § 6-68, W.S.1957. The trial court so instructed the jury when it said:
'You are instructed that the essential elements of assault and battery are:
'1. A rude, insolent or angry
'2. Unlawful touching
The court next instructed the jury as follows:
When these two instructions are read together the question is whether or not they sufficiently inform the jury what 'unlawful' touching is within the context of an assault and battery case. We think they do.
The jury must, of course, be informed of the essential law of the case in language it can understand and comprehend.
In Gardner v. State, 27 Wyo. 316, 196 P. 750 (1921), the state relied wholly on circumstantial evidence for conviction and the court failed to give a circumstantial-evidence instruction. This failure was not objected to. In holding that it was nonetheless fundamental and reversible error, we said:
'It is generally considered that it is the duty of the court to instruct the jury on the essential law of the case and of such matters of law without which the defendant will not receive a fair trial, or without which a jury of laymen would be apt to go wrong. . . .' Id., at 754. (Emphasis supplied)
The opinion goes on to analyze the statute having to do with the court's duty to charge the jury. This statute is, in pertinent part, exactly the same as our present Rule 51, which provides:
'. . . Before the argument of the case to the jury is begun, the court shall give to the jury such instructions on the law as may be necessary . . ..' (Emphasis supplied)
In Gardner, we said of such a similar statutory provision:
'It will be seen that it is mandatory upon the court to 'charge the jury' and can mean nothing less than that the court shall instruct the jury as to the essential law of the case, . . .' Id., at 754.
In Gardner we quoted from Union Pacific Railway Co. v. Jarvi, 3 Wyo. 375, 23 P. 398, in which opinion Justice Corn said:
'. . . Subdivision 6, § 2553, Rev.St.Wyo., provides that in civil cases, 'before the argument of the case is begun, the court shall give such instructions upon the law to the jury as may be necessary;' and his duty to do this is not excused by the failure of counsel to request 'specific instructions, good in point of law, and appropriate to the evidence.' . . .' Id., at 754.
In adopting the rule enunciated by Justice Corn from his Union Pacific Railway Company opinion, which was concurred in by Chief Justice Van Devanter, we concluded that a failure to instruct on circumstantial evidence where the state wholly relied on such evidence for conviction was to deny the defendant a fair trial. In other words, we held the circumstantial evidence-being the essential law of the case-an instruction was necessary.
In Parker v. State, 24 Wyo. 491, 161 P. 552 (1916), the court found the defendant in a capital case to have been denied a fair trial under the State and Federal constitutional provisions pertaining to due process of law even though objections were not properly and timely taken to...
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