People v. Hopper
| Decision Date | 03 December 1917 |
| Docket Number | 8894. |
| Parties | PEOPLE v. HOPPER. |
| Court | Colorado Supreme Court |
Error to District Court, City and County of Denver; William D Wright, Judge.
W. J Hopper was prosecuted for assault with a deadly weapon. A verdict of not guilty was directed, and the People bring error. Reversed.
Fred Farrar, Atty. Gen., and W. B. Morgan, Asst. Atty. Gen., for the people.
The writ of error in this case is prosecuted on behalf of the people to review a decision of the trial court in directing a verdict of not guilty. Authority for a review of the decision is found in section 1997, R. S. 1908 (section 2124 Mills' Ann. Sts.), which provides, inter alia, that:
'Writs of error shall lie on behalf of the state, or the people to review decisions of the trial court in any criminal case upon questions of law arising upon the trial.'
This is a criminal case in which, after both the people and the defendant rested, upon motion of defendant the trial court directed the jury to find the defendant not guilty.
The information which was filed against the defendant below, omitting formal parts, reads as follows:
'That W. J. Hopper, * * * with a deadly weapon, to wit, an automobile, which he, the said W. J. Hopper, then and there had and held, then and there unlawfully, willfully and maliciously did make an assault on one Frank W. Beard, with intent then and there unlawfully, willfully and maliciously to commit a bodily injury upon the person of the said Frank W. Beard, no considerable provocation then and there appearing for the said assault and the circumstances thereof then and there showing an abandoned and malignant heart in him the said W. J. Hopper.' The information was substantially in the language of the statute, section 1658, R. S. 1908 (section 1786, Mills' Ann. Sts.), on which it was based, so far as such statute defines the particular kind of assault here charged.
It is not necessary in the present case to determine whether or not an automobile is, or under some circumstances may be, 'a deadly weapon, instrument or other thing' referred to in the statute in question. A verdict of not guilty, so far as the particular offense charged in the information is concerned, was properly directed for the reason that there was, according to the evidence, no specific intent on the part of the defendant 'to commit a bodily injury upon the person of the said Frank W. Beard.' Under the statute on which the information was drawn, the intent therein mentioned is an essential element of the offense. In the case of State v. Potello, 42 Utah 396, 132 P. 14, the court had under consideration a statute very similar to ours; the statute having reference to assaults 'with intent to do bodily harm.' The court in the opinion says:
'All the cases and text-writers seem to be of one accord that in such a charge as here the intent to do bodily harm is the very essence of the offense, and that it must be proved as alleged.'
To the same effect is the case of In re Burns (C. C.) 113 F. 987. It is said in 5 C.J. 736, that:
Where 'the statute provides that the weapon must be used with a specific intent, such intent is an essential element of the offense.'
See, also, 3 Cyc. 1030; 2 Am. & Eng. Enc. Law, p. 965.
It has been held, however, that the intent need not be a specific intent to assault the prosecuting witness, or to inflict the particular kind of injury which resulted. 3 Cyc. 1030. The evidence in the case at bar disclosed no intent to injure any person or to inflict any particular injury.
The mere fact, however, that there was no evidence of the required specific intent whereby defendant would be guilty of the precise offense charged in the information would not justify the court in discharging the defendant. The defendant might still be guilty of simple assault An indictment or information for assault to do bodily harm includes a simple assault. 22 Cyc. 473. On a charge of aggravated assault the jury may find that an assault was committed without the aggravating circumstances and return a verdict of conviction of simple assault. 2 R.C.L. § 52, p. 571.
Upon the trial of this case there was some evidence introduced which made it the duty of the trial court to submit to the jury, under proper instructions, the question of defendant's guilt of simple assault. There was testimony that the defendant was driving an automobile down a very much-traveled street at a rate of from 45 to 50 miles per hour, a speed greatly in excess of that permitted by the speed ordinance of the city of Denver and in violation of such ordinance; that while so driving and when crossing an intersecting street the defendant's machine struck with great force the side of an automobile which was being driven along such intersecting street, whereby the car struck was 'smashed all to pieces' and both cars turned 'end for end'; that the collision occurred in an old settled part of the city, and the defendant while so driving the car 'was expecting to find any one coming out from those dark streets,' it being about 11:25 p. m. on a dark, dusty, and hazy night; that the defendant's car was in firstclass condition, under his control, and the brakes were in perfect condition; that as a result of the collision one of the occupants of defendant's car was thrown about 15 feet in the air, and that the driver of the car struck by defendant's automobile was severely injured.
There was no evidence that the defendant had a specific intent to injure any person in any manner, but this intent was not necessary to make out the offense of assault. The general rule with reference to what is the equivalent of criminal intent under these circumstances is thus stated in section 204, Clark & Marshall, Law of Crimes (2d Ed.):
'While there is very little authority on the question, there seems to be no good reason to doubt that a person may be guilty of criminal assault and battery if he intentionally does an act which, by reason of its wanton and grossly negligent character, exposes another to personal injury, and does in fact cause such injury.'
See, also, Commonwealth v. Hawkins, 157 Mass. 551, 32 N.E. 862.
In 1 Bishop's New Crim. Law, § 313, the author says:
This quotation was used and applied in the case of State v. Surry, 23 Wash. 655, 63 P. 557, 560, which was an assault case.
The law with reference to assault and battery in what may be called the 'automobile cases' is summarized by the court in its syllabi in the case of Tift v. State, 17 Ga.App. 663, 88 S.E. 41, as follows:
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