Minnix v. State, A-12134

• Decision Date: 09 March 1955
• Docket Number: No. A-12134,A-12134
• Citation: 1955 OK CR 37,282 P.2d 772
• Parties: Otis Lee MINNIX, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 772

282 P.2d 772

Otis Lee MINNIX, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.

No. A-12134.

Criminal Court of Appeals of Oklahoma.

March 9, 1955.

Rehearing Denied April 27, 1955.

Syllabus by the Court.

1. It is within the province of the legislative body to define words appearing in legislative acts, and where an act passed by the legislature embodies a definition, it is binding on the courts.

2. A statutory definition supersedes the commonly accepted, dictionary, or judicial definition.

3. Although in view of the long adopted statutes, Tit. 21 O.S.1951 §§ 641 and 642, defining assault and defining battery, respectively, the definition of aggravated assault set out in § 646 of the same Title defines an aggravated battery, or more properly, an aggravated assault and battery, the statutory definition of aggravated assault as being: 'When a serious bodily injury is inflicted upon the person assaulted' must stand.

4. A 'serious bodily injury' has been inflicted upon a person assaulted so as to render the assault an aggravated assault when the injury is such that would give rise to apprehension of danger to life, to health or limb.

5. Evidence found not to support the charge of aggravated assault, but to support the included offense of assault and battery, and judgment and sentence accordingly modified to 30 days confinement in the county jail and a fine of $100.

Appeal from the Court of Common Pleas of Oklahoma County; Evert Crismore, Judge.

Otis Lee Minnix was convicted for the crime of aggravated assault, sentenced to 90 days in jail, and appeals. Modified and affirmed.

Eagin & Eagin, Oklahoma City, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., Lewis A. Wallace, Asst. Atty. Gen., for defendant in error.

POWELL, Judge.

The plaintiff in error, Otis Lee Minnix, who will hereinafter be referred to as defendant, was jointly charged with Sam Winfield Baker with the crime of aggravated assault, by information filed in the court of common pleas of Oklahoma County. Baker fled and could not be found when the case came on for trial. The jury found the defendant guilty, but being unable to agree upon the penalty, left that to the court, who assessed punishment at ninety days imprisonment in the county jail, and to pay the costs.

The charging part of the information reads:

'On the 3rd day of April, A.D. 1954, in Oklahoma County State of Oklahoma, Otis Lee Minnix and Sam Winfield Baker whose more full and correct names are to your informant unknown, then and there being, did then and there wilfully, unlawfully and wrongfully commit the crime of Aggravated Assault in the manner and form as follows, to-wit:

'That is to say, the said defendants, in the county and state aforesaid, and on the day and year aforesaid, then and there being, did then and there without justifiable or excusable cause, and while acting conjointly and together, wilfully, unlawfully and wrongfully strike, beat, bruise and otherwise maltreat one James Defee, and inflict serious bodily injury to the head and body of the said James Defee; contrary to the form of the statutes in such cases made and provided and against the peace and dignity of the State of Oklahoma.'

Prior to 1951 there was no crime known to the laws of Oklahoma as 'aggravated assault'. Merchant v. State, 12 Okl.Cr. 360, 157 P. 272. But the 1951 Legislature, S.L.1951, ch. 20, p. 59, Senate Bill No. 51, enacted the statute under which the above information was filed, and being Section 646 of Title 21, O.S.1951. No historical note appears under the statutory provision in Title 21, O.S.1951.

However, both counsel for the defendant and the Attorney General assert that the above provision was copied from the Texas statute covering aggravated assault. We have examined Title 15, Article 1147 of Vernon's Texas Penal Code, and so far as applying to an assault is concerned, our statute is in the exact language of the Texas statute, except that the Texas statute recites some nine circumstances under which an 'assault or battery' becomes aggravated. ¹

Although our provision is so headed (the wording being in the plural) as to indicate a definition that would cover various circumstances under which an assault would be deemed 'aggravated', only one circumstance is actually set out, as will be noted from Senate Bill No. 51, which we quote in full:

'An Act relating to the crime of aggravated assault; defining such offense; fixing punishments therefor; and declaring an emergency.

'Be it Enacted by the People of the State of Oklahoma:

'Section 1. Aggravated Assault. An assault becomes aggravated when committed under any of the following circumstances:

'When a serious bodily injury is inflicted upon the person assaulted.

'Section 2. Punishment. An aggravated assault, shall be punished by imprisonment in a county jail not exceeding one (1) year, or by fine of not more than Five Hundred Dollars ($500.00), or both such fine and imprisonment.

'Approved May 26, 1951. Emergency.'

By comparing the above statute with the Texas statute in question it is at once noticeable that whereas the Texas statute contains the words 'An assault or battery becomes aggravated', etc., the Oklahoma statute simply provides: 'An assault becomes aggravated when committed under any of the following circumstances: When a serious bodily injury is inflicted upon the person assaulted.' (Emphasis supplied.)

It is at once apparent that the legislative body in defining an aggravated assault actually defined an aggravated battery, in light of the universally accepted meaning of the words in question. That is to say, there is a well defined difference between an assault and a battery. Section 641 of Title 21, O.S.1951 provides: 'An assault is any wilful and unlawful attempt or offer with force or violence to do a corporal hurt to another'; while Section 642 of the same Title defines a battery as follows: 'A battery is any wilful and unlawful use of force or violence upon the person of another.'

A clear illustration of what constitutes an assault is set out in Black's Law Dictionary, where it is said: 'An attempt or offer to beat another without touching him; as if one lifts up his cane or his fist in a threatening manner at another; or strikes at him, but misses him'; and where the same work defines a battery as: 'Any unlawful beating, or other wrongful physical violence or constraint, inflicted on a human being without his consent.' See also Words and Phrases; Vol. 4, Am.Jur., Assault and Battery; 6 C.J.S., Assault and Battery.

The information in the within case in the charging part recites facts that ordinarily would be said to constitute a battery by reason of the touching. The descriptive label of the information charges a higher grade of assault. It might be argued that there being no statutory provision on Oklahoma covering an aggravated battery, which if there was would also necessarily include an assault, though an assault does not necessarily include a battery, Parks v. State, 14 Okl.Cr. 413, 171 P. 1129, that the demurrer to the information interposed by the defendant should have been sustained.

But an ordinary situation is not presented in this case. Although an anomalous state of facts is presented by reason of an aggravated assault being by definition in Section 646 of Title 21 O.S.1951 adopting a definition that by Section 642 of the same Title, would constitute a battery, it is within the province of the legislative body to define words appearing in legislative acts, and where an act passed by the legislature embodies a definition, it is binding on the courts. Traxler v. State, 96 Okl.Cr. 231, 251 P.2d 815. And as stated in 50 Am.Jur., Statutes, § 262: 'Indeed, a statutory definition supersedes the commonly accepted, dictionary, or judicial definition. Where a statute contains its own definition of a term used therein, the term may not be given the meaning in which it is employed in another statute, although the two may be in pari materia'.

The problem, then, in this case, is to determine whether or not the facts proven were sufficient to sustain defendant's conviction of aggravated assault as defined by the legislative act in question.

At this point we would point out that in the within case the evidence developed that the prosecuting witness, James Defee, only a day out of the hospital, was driving the family car in Oklahoma City, accompanied by his four-year-old daughter, to pick up the wife and mother at her place of employment. It was around 4 o'clock in the afternoon, at Grand and Broadway. Defee noticed a car stalled at the intersection, and as he got abreast of this car a red light came on and he stopped his car. Then he noticed the defendant and another person, the absent co-defendant, approaching his car and cursing him. One of the parties, Sam Winfield Baker, appeared intoxicated, and wanted to know why Defee did not push their car. Defee told the parties that his bumper was broken, but Baker hit Defee with his fist and the defendant Minnix commenced to hit him over the face and body with his fists and split Defee's upper and lower lips, and about that time some one drove up and commenced to push the Minnix car, Baker having gotten into it, so that the defendant left and Defee went to the police station and filed a charge against Minnix and Baker, he having gotten their car tag number. They were later apprehended. Defee went to the hospital to have his lips sewed up, and for an examination.

Dr. Gilbert L. Hyroop testified that he specialized in plastic surgery; that on the night of April 23, 1954 he saw the prosecuting witness Defee at Mercy Hospital, and, said he:

'And, as I recall, he had some contusions on his face and laceration of the lip, and I did a surgical deprivement, under a local anesthesia, and sutured the lip in layers.

'Q. In layers? A. Yes.

'Q. Will you explain that, what you mean by layers? A. Well, usually, for the subcutaneous tissue,...