Parks v. State

• Decision Date: 20 April 1918
• Docket Number: A-2840.
• Citation: 171 P. 1129,14 Okla.Crim. 413,1918 OK CR 43
• Parties: PARKS v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

171 P. 1129

14 Okla.Crim. 413, 1918 OK CR 43

PARKS v. STATE.

No. A-2840.

Court of Criminal Appeals of Oklahoma

April 20, 1918

Syllabus by the Court.

Where the information attempts to charge an assault with a dangerous weapon as provided in section 2344, Rev. Laws 1910 and the proof both on the part of the state and the defendant shows the commission of the felonious degree of assault and battery as defined by section 2336, or some lesser grade of assault and battery, there is a fatal variance between the allegations and the proof, and upon proper motion the court should advise the jury to acquit upon the ground of variance and direct a prosecution to be commenced for the higher grade of offense.

Where the information charges any grade of assault and battery there may be a conviction of the same or any lesser grade of assault which is necessarily included in such a charge. But where the information merely charges a certain grade of assault, there may not be a conviction of that grade of assault and battery or of any lesser grade of assault and battery, because a charge of assault does not necessarily include a battery also.

Appeal from District Court, Lincoln County; Tom D. McKeown, Judge.

A. G. Parks was convicted of the crime of assault with a dangerous weapon and his punishment fixed at imprisonment in the penitentiary for a term of one year and one day, and he appeals. Reversed and remanded.

Erwin & Erwin, of Wellston, for plaintiff in error.

S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.

MATSON J.

The defendant, Parks, was prosecuted in the District Court of Lincoln County under an information charging (omiting the formal parts) as follows:

"That A. G. Parks *** did then and there willfully, unlawfully, and feloniously and with force and violence and without justifiable or excusable cause make an assault in and upon the person of one Wm. Gearhart with a dangerous weapon, to wit, a revolving pistol, with the intent then and there of him, the said A. G. Parks, to do him, the said Wm. Gearhart, bodily harm."

This information evidently attempted to charge the crime of assault with intent to do bodily harm with a dangerous weapon, as defined by the first part of section 2344, Revised Laws 1910, which provides as follows:

"Any person who, with intent to do bodily harm, and without justifiable or excusable cause commits any assault upon the person of another with any sharp or dangerous weapon, or who, without such cause, shoots or attempts to shoot at another, with any kind of firearm or airgun, or other means whatever, with intent to injure any person, although without intent to kill such person or to commit any felony, is punishable by imprisonment in the penitentiary not exceeding five years, or by imprisonment in a county jail not exceeding one year."

But as a charge under said section, we believe said information to have been defective, in that it failed to allege the manner in which the said "revolving pistol" was used upon prosecuting witness. Clark v. State, 6 Okl. Cr. 100, 116 P. 200.

But in view of the disposition herein made of this case, it is not necessary to pass upon the question of whether or not the information is sufficient to sustain a conviction under section 2344, supra. It will be noted that the offense defined by this section is limited to various kinds of assaults. The language of said section is not broad enough to include an assault and battery. In construing a statute, the terms of which are identical with section 2344, supra, the Supreme Court of North Dakota in State v. Marcks, 3 N. D. 532, 58 N.W. 25, said the following:

"But it also clearly appears that the information embodies a charge against defendants of committing another offense, i. e., the common-law offense of assault and battery. The last-named offense is one which is independent of the statutory felony defined in section 6510, and does not constitute an element of that offense. It is true that the information charges, in effect, that the assault and battery was committed with dangerous weapons, and with the felonious intent stated in the statute; but, after striking out such averments as surplusage-and they are surplusage-there is still left a sufficient charge of the independent crime of assault and battery. It follows that the demurrer to the information, upon the ground that it stated more than one offense, was well taken, and it was therefore error to overrule the same. For this error the judgment of conviction must be reversed. The information being fatally defective, no conviction under it can be sustained. The question presented upon this branch of the demurrer arises upon section 7244, Comp. Laws, which reads: 'The indictment must charge but one offense.' We have quite recently had occasion to construe this statute. See State v. Smith, 2 N. D. 515, 52 N.W. 320. The case we are now considering is ruled by that cited. As prosecutions under the statute in question are frequent, we will, as a guide for future cases arising under it, dispose of one other assignment of error. As has been seen, the trial court instructed the jury, in effect, that if the evidence satisfied them beyond a reasonable doubt that the defendants were not guilty of the felonious charge, but were guilty of assault and battery, they could find defendants guilty of the offense of assault and battery. The jury returned a verdict for assault and battery. An exception to the instruction was saved, and a motion for a new trial was made. We think, however, that the point could have been as well presented on a motion in arrest of judgment, which was also made. Code Cr. Proc. § 425; Comp. Laws, § 7452. We are of the opinion that it was error to overrule the motion in arrest of judgment, not simply alone, and because the information was invalid, in that it charged two offenses, but upon the further ground that no conviction for assault and battery can be had under an information charging the particular felony created by section 6510 of the statute. We are clear that assault and battery is not a lower degree of the statutory crime, and that it is not an essential element in the greater offense. A simple assault is necessarily a part of the aggravated assault, but an assault and battery is not. Under the statute of this state (section 7429, Comp. Laws), 'the jury

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