Johnson v. State

• Decision Date: 28 May 1993
• Citation: 629 So.2d 708
• Parties: Charles JOHNSON v. STATE. CR 92-441.
• Court: Alabama Court of Criminal Appeals

Page 708

629 So.2d 708

Charles JOHNSON v. STATE.

CR 92-441.

Court of Criminal Appeals of Alabama.

May 28, 1993.

Rehearing Denied July 9, 1993.

Gordon Armstrong III, Mobile, for appellant.

James H. Evans, Atty. Gen., and Jean Brown, Asst. Atty. Gen., for appellee.

BOWEN, Presiding Judge.

Charles Johnson, the appellant, was convicted of three counts of assault in the second degree and was sentenced to three consecutive terms of 20 years' imprisonment. On this direct appeal from that conviction, he argues that he should have been permitted to impeach the credibility of a State witness by showing that the witness had a prior conviction for assault in the second degree. We agree, and we hold that the crime of assault in the second degree as defined by Ala.Code 1975, § 13A-6-21, constitutes a crime involving "moral turpitude."

A witness may be impeached by showing that he has been convicted of a crime involving moral turpitude. Ala.Code 1975, § 12-21-162. The question in this case is whether assault in the second degree is a crime involving moral turpitude. Section 13A-6-21, Ala.Code 1975, provides:

"(a) A person commits the crime of assault in the second degree if:

"(1) With intent to cause serious physical injury to another person, he causes serious physical injury to any person; or

"(2) With intent to cause physical injury to another person, he causes physical injury to any person by means of a deadly weapon or a dangerous instrument; or

"(3) He recklessly causes serious physical injury to another person by means of a deadly weapon or a dangerous instrument; or

"(4) For a purpose other than lawful medical or therapeutic treatment, he intentionally causes stupor, unconsciousness or other physical or mental impairment or injury to another person by administering to him, without his consent, a drug, substance or preparation capable of producing the intended harm.

"(b) Assault in the second degree is a Class C felony."

Whether the offense defined in § 13A-6-21 is a crime of moral turpitude has not been decided in Alabama. In Nelson v. State, 595 So.2d 506 (Ala.Cr.App.1991), the trial court gave the following oral charge:

"[T]he evidence in the case [is] that the defendant has a conviction, a prior felony conviction for assault in the second degree, and our law says that where a person has been convicted of an offense involving moral turpitude such as this, that there is no longer a presumption that when he takes the oath to tell the truth, the whole truth and nothing but the truth and takes the stand and testifies, that there is no longer a presumption that he is telling the truth. Ordinarily every witness who takes the stand when he swears to tell the truth and testifies, there is a legal presumption that he or she will testify truthfully. But when it has been shown that a witness has been convicted in the past of a crime involving moral turpitude, then that presumption of truthfulness no longer exists and is no longer binding on you."

Nelson, 595 So.2d at 508-09 (emphasis added).

Without discussing whether assault in the second degree is a crime of moral turpitude, this court found the foregoing charge erroneous on other grounds, but harmless. The Alabama Supreme Court disagreed that the instruction was harmless, but it did not address the question whether assault in the second degree is a crime of moral turpitude. Ex parte Nelson, 595 So.2d 510 (Ala.1991).

Under the law existing prior to the adoption of the 1975 Criminal Code, simple assaults, and assaults and batteries were misdemeanors. See generally Chapter 12 of Title 14, Ala.Code 1940. Title 14, § 33, provided that

"[a]ny person who commits an assault, or an assault and battery, on another, shall, on conviction, be fined not more than five hundred dollars, and may also be imprisoned in the county jail, or sentenced to hard labor for the county, for not more than six months."

It is not surprising that assault and battery was classified as a misdemeanor, since the pre-Criminal Code offense was based on the common law definition of assault and battery as " 'any touching by one person of the person of another in rudeness or in anger.' " Seigel v. Long, 169 Ala. 79, 82, 53 So. 753, 754 (1910) (emphasis added) (wherein the defendant placed his hand on the plaintiff's forehead and pushed the plaintiff's hat back). The least violation of the person of another was an assault and battery, see Murdock v. State, 65 Ala. 520, 522 (1880), so that the mere laying of hands on another in a hostile manner constituted a battery, though no damage followed, Singer Sewing Mach. Co. v. Methvin, 184 Ala. 554, 561, 63 So. 997, 1000 (1913).

The former offenses of assault and assault and battery were not crimes of moral turpitude. Hall v. State, 375 So.2d 536, 538 (Ala.Cr.App.1979). Accord People v. Thomas, 206 Cal.App.3d 689, 694, 254 Cal.Rptr. 15, 18 (1988) ("neither simple assault, simple battery nor even felony battery are offenses involving moral turpitude.... Since the 'least touching' will suffice to constitute a battery, ... a person need not have an intent to injure to commit a battery, but only the general intent to commit the act"); Polk v. State, 202 Ga.App. 738, 415 S.E.2d 506, 507 (1992) (same).

It can reasonably be concluded that the prior offense of assault and battery was not considered a crime of moral turpitude because, under former law, the offense was a relatively minor misdemeanor, which (1) did not require either actual physical injury or intent to injure, (2) could "technically" be committed by a great many persons undeserving of severe sanction, and therefore (3) was unlikely to reflect negatively on a witness's credibility. In Gillman v. State, 165 Ala. 135, 51 So. 722 (1910), the Alabama Supreme Court observed that

"[a] mere assault and battery does not involve moral turpitude. Moral turpitude signifies an inherent quality of baseness, vileness, depravity. Assaults and batteries are frequently the result of transient ebullitions of passion, to which a high order of men are liable, and do not necessarily involve any inherent element of moral turpitude."

165 Ala. at 136, 51 So. at 723. Compare Thomas v. State, 29 Md.App. 45, 349 A.2d 384, 389-90 (1975) (wherein the court, observing that "[t]here are some very truthful people who love to get in barroom fights," held that a conviction for assault and battery did not affect the credibility of a witness).

Under former Alabama law, the offense of assault with a dangerous weapon, which consisted of "drawing or threaten[ing] to use" the weapon, was also a misdemeanor, Title 14, § 36, Code of Alabama, 1940, and not crime of moral turpitude. Savage v. State, 380 So.2d 375, 379-80 (Ala.Cr.App.1980). But compare People v. Cavazos, 172 Cal.App.3d 589, 595, 218 Cal.Rptr. 269, 272-73 (1985) (witness may be impeached with prior conviction for assault with a deadly weapon; the use of the weapon elevates the assault to a turpitudinous crime).

Prior to the adoption of the Alabama Criminal Code, the only assault crimes punished as felonies were those "aggravated" assaults named in Title 14, § 38, Code of Alabama 1940:

"Any person who commits an assault on another, with intent to murder, maim, rob, ravish, or commit the crime against nature, or who attempts to poison any human being, or to commit murder by any means not amounting to an assault, shall, on conviction, be punished by imprisonment in the penitentiary for not less than two nor more than twenty years."

The former offense of assault with intent to murder, a felony "aggravated assault" named in Title 14, § 38, supra, was considered a crime of moral turpitude. Harris v. State, 343 So.2d 567 (Ala.Cr.App.1977); Matthews v. State, 51 Ala.App. 417, 419, 286 So.2d 91 (1973). See C. Gamble, McElroy's Alabama Evidence § 145.01(9)(c) and § 145.10(c) (4th ed. 1991).

The current felony assault offense defined in § 13A-6-21 requires both a more culpable mental state on the part of the perpetrator and a more serious injury to the victim than the prior misdemeanor offenses of simple assault or assault and battery required. Subsections (1), (2), and (4) of § 13A-6-21(a) require intentional conduct on the part of the actor. A person violates subsection (1) if he intends and causes "serious physical injury." He violates subsection (2) if he intends and causes "physical injury" by means of a deadly weapon or dangerous instrument. The actor violates subsection (4) if, "for a purpose other than lawful medical or therapeutic treatment," he intends and causes "stupor, unconsciousness, or other physical or mental impairment or injury" by administering "a drug, substance, or preparation."

Subsection (3) of the current offense requires only reckless conduct on the part of the actor. However, that mental state is substantially more culpable than the mental state required for the former offenses of simple assault, assault and battery, or even assault with a deadly weapon. "A person acts recklessly with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur, or that the circumstance exists." Ala.Code 1975, § 13A-2-2(3). Thus, a person violates subsection (3) of § 13A-6-21(a) if he is aware of a risk of serious physical injury, consciously disregards that risk, and causes serious physical injury by means of a deadly weapon or dangerous instrument.

It is obvious that the current offense of assault in the second degree is a much more culpable offense, in terms of the required mental state, the required result, and the required punishment, than the prior offenses of assault, assault and battery, or assault with a deadly weapon, all of which were misdemeanors and none of which were crimes of moral turpitude. The current offense of assault in the second degree more closely resembles the "aggravated assault" felonies defined in Title 14, §...