State v. Griffith

• Decision Date: 02 November 1934
• Docket Number: 6164
• Citation: 55 Idaho 60,37 P.2d 402
• Parties: STATE, Respondent, v. W. C. GRIFFITH, Appellant
• Court: Idaho Supreme Court

37 P.2d 402

55 Idaho 60

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

No. 6164

Supreme Court of Idaho

November 2, 1934

CRIMINAL LAW-ASSAULT AND BATTERY-COMPLAINT, SUFFICIENCY OF-APPEAL-CONFLICTING EVIDENCE-VERDICT UNDISTURBED.

1. Statute covering indictments and informations held inapplicable to complaints filed in probate and justices' courts, charging commission of misdemeanors (I. C. A., secs 19-1309, 19-1310, 19-1311, 19-4001).

2. Complaint alleging that on certain date accused wilfully and unlawfully used force and violence upon person of another held sufficient to charge commission of misdemeanor of battery (I. C. A., secs. 17-1203, 19-4001).

3. Verdict of conviction, where there is substantial and competent evidence to support it, will not be disturbed on appeal, since credibility of witnesses and weight to be given their testimony is solely for jury.

4. In battery prosecution, instruction that gas tube used by accused was not, under statute, a deadly weapon and should not be so construed by jury, held properly refused, where accused was charged with commission of simple battery and not with assault with deadly weapon (I. C. A., sec. 17-1203).

APPEAL from the District Court of the Sixth Judicial District, for Lemhi County. Hon. Guy Stevens, Judge.

W. C Griffith was convicted of battery, and appeals. Affirmed.

Affirmed.

Lot L Feltham, for Appellant.

In order that an information charging a statutory offense in the language of the statute may be sufficient it must fully, directly and expressly contain all the elements constituting the offense, and if the exact language of the statute fails to do this, the wording of the statute may be expanded consonant with its intent to sufficiently describe the crime. (State v. Bowman, 40 Idaho 470, 235 P. 577; State v. Scheminisky, 31 Idaho 504, 174 P. 611; State v. Cole, 31 Idaho 603, 174 P. 131.)

Bert H. Miller, Attorney General, and Ariel L. Crowley, Assistant Attorney General, for Respondent.

In charging misdemeanors in probate court it is not necessary to observe the technical precision of indictments and informations. (Section 19-4001, I. C. A.; State v. Ashby, 40 Idaho 1, 230 P. 1013; People v. Rosenbloom, 119 Cal.App.Supp. 759, 2 P.2d 228.)

HOLDEN, J. Budge, C. J., and Givens, Morgan and Wernette, JJ., concur.

OPINION

HOLDEN, J.

Appellant was charged with, and convicted of, the crime of battery in the probate court of Lemhi county. He appealed to the district court and was again convicted, and from the judgment of conviction, and an order denying motion for new trial, he appeals to this court.

December 6, 1933, appellant, and one Cramer, in Cramer's automobile, drove to the farm of the complaining witness to see him about certain personal property held by the complaining witness, J. G. Wicklund. Upon arrival at the Wicklund home, a conversation, between appellant and Wicklund, in regard to the personal property, occurred at the rear of Cramer's automobile, which stood outside a woven wire fence inclosing the Wicklund residence. Shortly after the conversation began, Wicklund left, passing through a gate in said fence, in front of the Wicklund residence. Appellant followed Wicklund to the gate and stopped. After Wicklund had passed through and gotten a short distance from the gate, he turned around and started back. When within about three feet of the gate, he demanded that appellant apologize for "a dirty remark" which appellant, according to Wicklund's statement, had made about Wicklund's wife. Appellant then drew a tear gas gun, whereupon Wicklund said, "Draw your gas gun, you dirty coward." Appellant then fired the tear gas gun, the charge striking Wicklund full in the face, quite severely injuring Wicklund's left eye. Appellant testified that Wicklund first struck him with his fist, and then with a shovel, before he fired the tear gas gun, in which he was corroborated to some extent by Cramer.

Following conviction in the district court, appellant moved in arrest of judgment, and for a new trial. The trial court denied both motions.

Appellant was prosecuted under section 17-1203, I. C. A., which reads as follows:

"A battery is any wilful and unlawful use of force or violence upon the person of another."

Several alleged errors are assigned, to wit: That the complaint does not state facts sufficient to constitute a public offense; that the court erred in refusing to grant appellant's motion in arrest of judgment; that the court erred in denying appellant's motion for a new trial; that the evidence is insufficient to support the judgment, and that the court erred in refusing to give appellant's requested instruction No. 1.

The first and second alleged errors will be considered together. The material part of the complaint, charging appellant with the crime of battery, is as follows:

"That W. C. Griffith of Northfork, on the 6th day of December, 1933, at Salmon, in the County of Lemhi, and State of Idaho, committed the crime of battery, committed as follows, to-wit:

"The said W. C. Griffith being then and there did then and there wilfully and unlawfully use force and violence in and upon the person of J. G. Wicklund."

Appellant argues, in effect, that the sufficiency of the complaint must be tested by the provisions of sections 19-1309, 19-1310, and 19-1311, I. C. A. Those sections form a part of chapter 13 I. C. A., covering indictments...