State v. Blacksten, 9302

• Decision Date: 13 December 1963
• Docket Number: No. 9302,9302
• Citation: 387 P.2d 467,86 Idaho 401
• Parties: STATE of Idaho, Plaintiff-Respondent, v. J. C. BLACKSTEN, Defendant-Appellant.
• Court: Idaho Supreme Court

Page 467

387 P.2d 467

86 Idaho 401

STATE of Idaho, Plaintiff-Respondent, v. J. C. BLACKSTEN, Defendant-Appellant.

No. 9302.

Supreme Court of Idaho.

Dec. 13, 1963.

Hall & Rowett, Mountain Home, for appellant.

Allan G. Shepard, Atty. Gen., and Warren Felton, Asst. Atty. Gen., Boise, for respondent.

TAYLOR, Justice.

In the spring of 1961, defendant (appellant) leased a portion of his farm in Elmore county to the complaining witness, J. D. Caradine. The lease did not include pasture land. Upon the leased land Caradine raised hay, wheat and corn. Caradine was approximately 43 years of age, and defendant was approximately 77 years of age. Some friction developed between them during the cropping season with reference to Caradine's farming, and money loaned by defendant to Caradine. Defendant contended that Caradine had abandoned the crops in July and for that reason the defendant harvested the third crop of hay, and in October had commenced picking the corn. October 6th, pursuant to defendant's request, a neighbor, one Pachner, came to the farm with a corn harvesting machine to complete the harvesting of the corn. Caradine, observing the machine crossing the pasture land, stopped Pachner near the cornfield, told Pachner that the corn belonged to him and that Pachner would get into a lawsuit if he undertook to harvest it for defendant. Defendant then came out of the cornfield, went to his pickup truck parked nearby, picked up a shovel and came up to the harvester and told Pachner to pay no attention to Caradine, addressed profane and abusive epithets to Caradine, ordered him off the property and told him if he did not leave he would 'wrap the shovel around his head.'

Pachner testified that Caradine dared defendant to carry out his threat and, upon again being addressed with an abusive epithet by defendant, Caradine stepped down from the platform on the harvester where he had been standing and approached defendant with his fists doubled up in a threatening manner; that thereupon defendant struck Caradine on the head with the shovel, inflicting a serious wound from which blood flowed freely; that the blow knocked Caradine down and dazed him; that other blows were struck when Caradine was down.

Caradine testified that he did not make an assault with his fists; that he stepped down from the harvester intending to leave the premises, when defendant struck him on the head with the shovel; that he was struck down three times; that he procured a stick from a nearby fence which he used to shield himself, and with which he struck the defendant.

Pachner further testified that after defendant first struck Caradine, he, Pachner, got down from the harvester and undertook to stop the affray; that when Caradine got the 'club' from the fence he, Pachner, told the defendant to 'get out of there' and headed for the pickup; that when he looked back 'they were coming,' defendant sideways, swinging the shovel, and Caradine after him with two sticks; that after entering the pickup he looked back again, saw Caradine on the ground, back of the pickup, again felled by defendant with the shovel; that defendant was by the cab; that he opened the door and as defendant got in and the door was closed behind him, a crashing blow struck the door from the outside and 'we took off;' and that defendant had sustained a broken arm and a cut on the side of his head.

The defendant testified that Caradine first came at him with clenched fists; that he told Caradine to stay back and when he kept coming, 'I hit him in the head;' that Caradine grabbed the shovel; that he and Pachner pried Caradine's hands off the shovel and Pachner leaned it against the combine; that Caradine--'apparently he kinda come to and wandered off down the fence;' that he, defendant, picked up the shovel and followed a little distance behind; that Pachner went to the pickup and said, 'come on, let's get out of here;' that when Caradine got to the gate he broke off a stay and rushed back and threw the stay at defendant; that the 'stay' or stick struck him on the arm, breaking a bone; and 'I did strike at him a time or two when he was getting out there on all fours, getting away from me.'

Caradine was taken to a hospital where his head wound was sutured and dressed by a doctor.

By information of the prosecuting attorney, defendant was charged with aggravated assault and aggravated battery, under the provisions of I.C. § 18-912. By the terms of this statute, aggravated assault and aggravated battery are defined as follows:

'An assault or battery committed under any of the following circumstances is aggravated: when without justifiable or excusable cause a person unlawfully commits an asault (assault) upon the person of another, either with or without a weapon, and thereby wounds or inflicts grievous bodily injury upon such person; when committed with a premeditated design and by the use of means calculated to inflict great bodily injury.

'Every person guilty of an aggravated assault or battery as above defined shall be punishable by a fine of not less than $100.00 or by imprisonment in the county jail for not less than three months nor more than one year, or by imprisonment in the state penitentiary for a period not exceeding three years, or by fine not exceeding $1,000.00.'

Defendant demurred to the information on the ground that it charged both aggravated assault and aggravated battery. At the opening of the trial the court ruled that the information was duplicitous and required the state to elect upon which charge it would proceed. The state elected the charge of aggravated battery.

The court properly instructed the jury upon simple assault and simple battery in the terms of the statutes defining those offenses (I.C. §§ 18-901 and 18-903), and that such offenses were necessarily included in the charge of aggravated battery, and that the jury might find defendant guilty of any offense included in the charge, which in the judgment of the jury was supported by the evidence.

Defendant was found guilty of aggravated battery and judgment was entered imposing a fine of $350.00. Defendant prosecutes this appeal from the judgment and from an order denying his motion for a new trial.

By his first assignment defendant urges that the statute, I.C. § 18-912, is void for uncertainty. In particular it is urged that the word 'grievous,' 'means nothing more than causing grief, pain or sorrow,' and that an injury causing pain or sorrow would follow from the use of 'force or violence upon the person of another,' within the definition of simple battery, and that the use of the qualifying phrase 'without justifiable or excusable cause' and 'with a premeditated design and by the use of means calculated to inflict great bodily injury,' render the statute ambiguous and indefinite. However, the word, 'grievous' is not properly so mildly defined. In Webster's Third New International Dictionary it is defined as 'causing, characterized by, or indicative of severe physical pain or suffering: hurtful, distressing, injurious (a wound) * * * Intense, severe (--pain),' also, 'serious, deplorable, * * * atrocious, henious.' The use of the word, 'grievous' indicates a legislative intent to describe an injury more serious than would result from a simple battery, and the court properly so instructed the jury. State v. Laughlin, 105 Mont. 490, 73 P.2d 718; State v. Davis, 72 Wash. 261, 130 P. 95; 18 A Words and Phrases pp. 450, 452, 467. We do not find the statute uncertain for the reasons urged. State v. Aims, 80 Idaho 146, 326 P.2d 998; City of Lewiston v. Mathewson, 78 Idaho 347, 303 P.2d 680; State v. Evans, 73 Idaho 50, 245 P.2d 788; State v. Campbell, 70 Idaho 408, 219 P.2d 956; State v. Mead, 61 Idaho 449, 102 P.2d 915; People v. Green, 368 Ill. 242, 13 N.E.2d 278, 115 A.L.R. 348; United States v. National Dairy Products Corp. (Feb. 18, 1963) 372 U.S. 29, 9 L.Ed.2d 561, 83 S.Ct. 594; Cf. State v. Pigge, 79 Idaho 529, 322 P.2d 703; Const. Art. 1, § 13.

By his second assignment, defendant urges that the verdict and judgment are contrary to the evidence. The evidence was conflicting. The credibility of the witnesses, the weight to be given to their testimony, as well as the facts, were for determination by the jury. I.C. § 9-201; State v. Johnson, 77 Idaho 1, 287 P.2d 425, 51 A.L.R.2d 1386, certiorari denied 76 S.Ct. 649, 350 U.S. 1007, 100 L.Ed. 869; State v. Davis, 69 Idaho 270, 206 P.2d 271; State v. Cacavas, 55 Idaho 538, 44 P.2d 1110. There was substantial and competent evidence to support the verdict; hence, it will not be disturbed. State v. Anderson, 82 Idaho 293, 352 P.2d 972.

Defendant also contends that the court erred in failing to instruct the jury as to the law of self-defense as against a trespasser. In support of this contention, defendant urges that the affray, having occurred on pasture land not covered by Caradine's lease, Caradine was a trespasser and that defendant was authorized to use such force as was necessary to remove him from the premises upon his refusal to leave pursuant to demand. We do not agree with this contention. Being a tenant, Caradine was entitled to be upon the premises for all purposes properly connected with his farming operations, and the evidence would support a finding that the route of access to the cornfield, at least with equipment, was across the pasture. The fact that defendant claimed, and Caradine denied, that the latter had abandoned his lease, would not affect the issue, particularly in view of the law that abandonment is a question of intent. Carrington v. Crandall, 65 Idaho 525, 147 P.2d 1009. The court instructed the jury fully on the law of self-defense. We find no error in this regard.

Defendant also urges error in the failure of the court to instruct on the disparity in the ages and physical condition of the parties to the affray, and that such disparity might justify the weaker in using a weapon to defend himself though the other...