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 |
Gordon Armstrong III, Mobile, for appellant.
James H. Evans, Atty. Gen., and Jean Brown, Asst. Atty. Gen., for appellee.
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:
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:
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).
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) () ; Polk v. State, 202 Ga.App. 738, 415 S.E.2d 506, 507 (1992) (same).
165 Ala. at 136, 51 So. at 723. Compare Thomas v. State, 29 Md.App. 45, 349 A.2d 384, 389-90 (1975) ( ).
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) ( ).
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, §...
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