State v. Eisele
| Decision Date | 24 January 1985 |
| Docket Number | No. 14520,14520 |
| Citation | 107 Idaho 1035,695 P.2d 420 |
| Parties | STATE of Idaho, Plaintiff-Respondent, v. George EISELE, Defendant-Appellant. |
| Court | Idaho Court of Appeals |
Vernon K. Smith, Boise, for defendant-appellant.
Jim Jones, Atty. Gen., Lynn E. Thomas, Sol. Gen., Myrna A.I. Stahman, Deputy Atty. Gen., Boise, for plaintiff-respondent.
Before HUNTLEY, Acting C.J., and McFADDEN and TOWLES, Acting JJ., Special Panel.
George Eisele was tried for aggravated battery after he discharged a shotgun up a stairway during a fight at a party on May 15, 1981. A woman at the party was hit in the buttocks and on the ankle by a ricocheting shot. The jury was instructed on aggravated battery and on what were stated to be the necessarily included offenses of battery, aggravated assault, and assault. The jury found Eisele not guilty of aggravated battery, but found him guilty of the lesser included offense of aggravated assault.
Eisele argues on appeal that aggravated assault is not under these circumstances a lesser included offense of aggravated battery; that absent defendant's objection, (and even in the face of his counsel's affirmative approval of the instructions) instructions on assault and aggravated assault as lesser included offenses to aggravated battery were improper; and that no factual basis exists to support the verdict of aggravated assault.
We affirm the trial court's giving of the challenged instructions, and the conviction pursuant thereto, for the following reasons.
In State v. Wilding, 57 Idaho 149, 63 P.2d 659 (1936), this Court held that an assault is a necessarily included offense of battery. I.C. § 17-1201 then defined assault as "an unlawful attempt, coupled with present ability, to commit a violent injury on the person of another;" 1 I.C. § 17-1203 defined battery as "any willfull and unlawful use of force or violence upon the person of another." 2 The Court concluded that clearly the appellant there could not have " 'willfully' struck the victim without making an 'unlawful attempt' to do so ... An assault is an inchoate battery." Id. at 151, 63 P.2d at 660. The criminal code has since been amended to include the offenses of aggravated assault and aggravated battery. 3 The principles expressed in Wilding apply to those crimes as well.
Eisele argues that jury instructions on assault and aggravated assault were improper because the evidence does not support a reasonable view that those crimes were committed. I.C. § 19-2132(b) provides that the Court "shall instruct the jury on lessor included offenses when they are supported by any reasonable view of the evidence."
Eisele concedes that he did not object to the jury instructions when given during the trial. The State argues in turn that Eisele's counsel's statement with regard to the jury instructions that "they are fine" forecloses an assignment of error based on the instructions. The State cites I.C.R. 30 which, prior to amendment effective in July, 1980, stated that "[n]o party may assign as error any portion of the change [sic] or omission therefrom unless he objects thereto prior to the time the jury is changed [sic]." Amended I.C.R. 30 does not include that limitation. I.C.R. 30 as amended does not preclude assignment of error in instructing where the defendant in a criminal case fails to object to the instructions in question.
Nevertheless we affirm on the ground that the jury could reasonably conclude from the evidence that Eisele was guilty of aggravated assault. The jury was entitled to believe the prosecution's view of the evidence that Eisele did not fall with his gun, accidentally causing it to discharge as he claims, but rather that he intended to fire the gun, in the general direction of those at the party, thus establishing " ... attempt, coupled with an apparent ability, to commit a violent injury on the person of another ..." I.C. § 18-901. The use of the gun brings the assault within the aggravated assault statute, I.C. § 18-905.
Affirmed.
1 I.C. § 18-901 now and at the time of the incident provides:
18-901. Assault defined.--An assault is:
(a) An unlawful attempt, coupled with apparent ability, to commit a violent injury on the person of another; or
(b) An intentional,...
To continue reading
Request your trial
-
Stuart v. State
...my Stuart I opinion, under the section titled "FAILURE TO INSTRUCT," 110 Idaho at 188, 715 P.2d at 858. See also State v. Eisele, 107 Idaho 1035, 1037, 695 P.2d 420, 422 (1985) ("I.C.R. 30 as amended does not preclude assignment of error in instructing where the defendant in a criminal case......
-
Bernard v. Roby
... ... In State ex rel. Goodwin v. Valentine, 107 Idaho 1033, 695 P.2d 418 (Ct.App.1985), we were presented with a comparable dismissal of an appeal from the ... ...
-
State v. Smith
...amendment on the right to appeal the giving of an instruction to which no objection was interposed at trial. See State v. Eisele, 107 Idaho 1035, 695 P.2d 420 (Ct.App.1985); State v. Koch, 115 Idaho 176, 765 P.2d 687 (Ct.App.1988); State v. Randles, 115 Idaho 611, 768 P.2d 1344 (Ct.App.1989......
-
State v. Koch
...does not require an objection at trial to preserve issues regarding errors in the substance of jury instructions. State v. Eisele, 107 Idaho 1035, 695 P.2d 420 (Ct.App.1985); see also County Insurance Co. v. Agricultural Development, Inc., 107 Idaho 961, 695 P.2d 346 (1985) (footnote 4 comm......