Mapula v. Territory of Arizona

• Decision Date: 30 March 1905
• Docket Number: Criminal 187
• Citation: 9 Ariz. 199,80 P. 389
• Parties: FRANCISCO MAPULA, and DIONICIO JURADO, Defendants and Appellants, v. TERRITORY OF ARIZONA, Plaintiff and Respondent
• Court: Arizona Supreme Court

80 P. 389

9 Ariz. 199

FRANCISCO MAPULA, and DIONICIO JURADO, Defendants and Appellants, v. TERRITORY OF ARIZONA, Plaintiff and Respondent

Criminal No. 187

Supreme Court of Arizona

March 30, 1905

APPEAL from a judgment of the District Court of the Second Judicial District in and for the County of Graham. Fletcher M. Doan Judge. Affirmed.

The facts are stated in the opinion.

Edwards & McFarland, for Appellants.

There can be no conviction for an aggravated assault unless the aggravating matter is set out in the indictment.

In this case the party assaulted was a female, but the indictment failing to allege that the assaulting parties were adult males, it is insufficient to charge the offense of aggravated assault. Griffin v. State, 12 Tex. App. 423; Lawson v. State, 13 Tex. App. 83; Flynn v. State, 8 Tex. App. 368.

Both an assault and a battery are statutory offenses in the territory of Arizona, and these offenses must be described according to their statutory definitions, for that is necessary to show that the acts constituting the offenses are in violation of the statute. Adell v. State, 34 Ind. 543.

In charging an assault under our statute the "present ability to commit a violent injury" must be alleged. Pen. Code, sec. 207; State v. Hubbs, 58 Ind. 415; Howard v. State, 67 Ind. 401.

Joseph H. Kibbey, Attorney-General, and Charles L. Rawlins, District Attorney, for Respondent.

OPINION

SLOAN, J.

-- The appellants in the district court of Graham County were tried upon a charge of murder, and convicted, and sentenced for an aggravated assault. The indictment, omitting the formal parts, reads as follows: "Francisco Mapula and Dionicio Jurado are accused by the grand jury of the county of Graham territory of Arizona, duly impaneled and sworn, by this indictment, found this 5th day of April, A.D. 1904, of the crime of murder, committed as follows: The said Francisco Mapula and Dionicio Jurado, on or about the 8th day of September, A.D. 1903, and before the finding of this indictment, at the county of Graham, territory of Arizona willfully, unlawfully, feloniously, with malice aforethought, and deliberate premeditation, in and upon one Annie Beanes, an assault did make, in some way or manner, and by some means, instrument, and weapon to the grand jurors unknown, they, the said Francisco Mapula and Dionicio Jurado, did then and there willfully, unlawfully, feloniously, with malice aforethought, and deliberate premeditation, inflict on and create in the said Annie Beanes certain mortal injuries, a further description whereof is to the grand jurors unknown, of which said mortal injuries, to the grand jurors unknown, the said Annie Beanes afterwards, to wit, on or about the 7th day of October, A.D. 1903, in the county of Graham, territory of Arizona, did die. And so the grand jurors aforesaid, upon their oaths aforesaid, do say that they the said Francisco Mapula and Dionicio Jurado her, the said Annie Beanes, in the manner and form aforesaid, then and there willfully, unlawfully, feloniously, with malice aforethought, and deliberate premeditation, did kill and murder. Contrary to the statute in such case made and provided and against the peace and dignity of the territory of Arizona."

It is contended by counsel for appellants that the judgment of conviction cannot be sustained, for two reasons: 1. Because the crime of an aggravated assault is not, nor can it be, by any pleading, included as a lesser offense in a charge of murder; and 2. Because the facts stated in the indictment in this case do not set forth the particular circumstances necessary to constitute the offense of an aggravated assault under the statute.

At common law one could not be indicted and tried for murder and be convicted of any offense less than manslaughter, and in no case could one be convicted of a misdemeanor upon an indictment charging a felony, even though such misdemeanor be included in such felony as a constituent part. This rule has been generally abrogated by statute in this country. Section 974 of the Penal Code provides that a defendant may be found guilty of any offense "the commission of which is necessarily included in that with which he is charged" It must be admitted that the narrow and precise meaning...