Richardson v. State

• Decision Date: 30 June 1928
• Docket Number: Criminal 676
• Citation: 268 P. 615,34 Ariz. 139
• Parties: W. C. RICHARDSON, Appellant, v. STATE, Respondent
• Court: Arizona Supreme Court

268 P. 615

34 Ariz. 139

W. C. RICHARDSON, Appellant, v. STATE, Respondent

Criminal No. 676

Supreme Court of Arizona

June 30, 1928

APPEAL from a judgment of the Superior Court of the County of Apache. A. S. Gibbons, Judge. Reversed, with directions that defendant be granted a new trial.

Mr Dodd L. Greer and Mr. Isaac Barth, for Appellant.

Mr John W. Murphy, Attorney General, and Mr. Frank J. Duffy Assistant Attorney General, for the State.

OPINION

ROSS, C. J.

W. C Richardson, the appellant, prosecutes this appeal from a judgment of conviction of an assault with a deadly weapon, alleged to have been committed in Apache county on or about May 23, 1927.

He first says the whole trial was without jurisdiction because the information did not state facts sufficient to constitute a public offense. The information, stripped of all qualifying adjectives and jurisdictional allegations of time and place, is as follows:

"The defendant did make an assault in and upon the person of one Albert Thompson with a certain deadly weapon, to wit, a loaded rifle."

It is said that whether there was an assault or not depends upon the facts, and that such facts should have been alleged, as that defendant attempted to strike Thompson with the rifle, or pointed the loaded rifle at him, or discharged it near or toward him in an attempt to inflict a violent injury on the person of Thompson. But these are implied from the use of the word "assault," which means, according to the statutory definition, "an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another." Pen. Code 1913, § 207. The present ability and the intent are probative facts to be proved on the trial, and need not be alleged in the information or indictment. Brimhall v. State, 31 Ariz. 522, 53 A.L.R. 231, 255 P. 165.

We think the information stated a public offense, and the court did not err in admitting evidence thereunder or in proceeding with the trial.

The defendant was a witness in his own behalf, and on his cross-examination by the county attorney testified as follows:

"Q. And you put a loaded bullet in the gun? A. Yes, sir.

"Q. And you shot it at Thompson? A. Yes, sir.

"Q. And you shot to kill? A. No, sir."

On his redirect examination he was asked by his attorney to state why he used the rifle in the manner in which he did, and, upon objection of the county attorney, he was not permitted to explain or give his reasons for firing the gun. The grounds of objection were that it was improper redirect, self-serving, and called for a conclusion of the witness. The particular ground upon which the court sustained the objection does not appear. Clearly under the decisions of this court the reason why defendant fired the shot, when explained from his viewpoint, is not self-serving, nor is it considered a conclusion of the witness. Ryan v. Territory, 12 Ariz. 208, 100 P. 770; Ayers v. State, 20 Ariz. 189, 178 P. 782. In the former case we said:

"Where intent or belief or motive is material," the defendant "is entitled . . . to testify directly what his intent, belief, or motive was at the time he committed the act."

The court's ruling can be sustained, if at all, only on the ground that the question was not proper redirect. It is said:

"The proper function of the redirect examination is to rebut matter brought out on cross-examination, or to avoid the effect of such matters, and it may be said generally that any line of examination legitimately tending to have such effect is proper." 40 Cyc. 2520, 2521.

We do not know what the witness' answer would have been, but on his...