State v. Hanks
| Decision Date | 15 October 1941 |
| Docket Number | Criminal 899 |
| Citation | 58 Ariz. 77,118 P.2d 71 |
| Parties | THE STATE OF ARIZONA, Appellee, v. BRINO H. HANKS, Appellant |
| Court | Arizona Supreme Court |
APPEAL from a judgment of the Superior Court of the County of Maricopa. Levi S. Udall, Judge. Judgment affirmed.
Mr. Joe Conway, Attorney General, and Mr. Albert M. Garcia, Assistant Attorney General, for Appellee.
Mr. Z Simpson Cox and Mr. Renz L. Jennings, for Appellant.
This is an appeal by Brino Hanks from a judgment of conviction of the crime of aggravated assault and from orders overruling his motion for a new trial and in arrest of judgment. He will be designated hereafter as the defendant.
The record discloses that Harry Ong, the prosecuting witness, a young man twenty-two years of age, lived with his parents at 1701 West Linden Street, Phoenix, and worked in the grocery and meat market which his father had run at that point for seven or eight years. On the afternoon of May 11, 1940 between five and six o'clock, his small sister went into the store and told him that Fred Hanks, the thirteen year old son of defendant, was on top of his automobile which was standing in front of the old store building just east of the present one at 1701. He stepped outside and found Fred on the hood and either asked him to get off or pulled him off and then took him by the arm with one hand and by the neck or hair with the other and started with him along the sidewalk toward his home at 1707 West Linden, the third door west of 1701.
As he was going along the walk with Fred the latter's father the defendant, drove by in his truck on his way home. Noticing an altercation on the sidewalk between two people, as he passed, he stopped just as he turned into his driveway and, having kept his eye on the fracas from the time he recognized his son Fred as one of them, he quickly got out of his truck, pushed the seat forward, grabbed a gun and started toward them. When within a short distance of them, he shot three times, in rather rapid succession, at Harry Ong, one of the bullets going in his back and coming out through the upper part of his neck in front, piercing the lung and cutting a small vein or artery as it passed through his body. He ran into the store, lay on the floor, bled profusely and was then taken to the hospital where he remained until discharged some seven or eight weeks later.
Defendant testified that he shot Harry because he was mistreating or beating his son Fred. There was much testimony from eye witnesses as to the details of the fracas, some stating that Harry was mistreating Fred and others that he was not, but whether the witnesses for the state or those for defendant were correct on this point it is not necessary to determine in order properly to dispose of the questions raised by the appeal.
Following a preliminary hearing an information was filed against defendant accusing him of the crime of "assault with intent to commit murder, a felony," the charging part of which was in this language:
"The said Brino H. Hanks on or about the 11th day of May, 1940, and before the filing of this information at and in the County of Maricopa, State of Arizona, did then and there wilfully and unlawfully and feloniously assault one Harry Ong, a Human being, with the intent to murder the said Harry Ong;..."
At the conclusion of the arguments, the court instructed the jury that "the charge of assault with intent to commit murder also includes the charge of an aggravated assault" and in accordance with this view submitted to it, in addition to forms of verdict finding defendant guilty of assault with intent to commit murder and not guilty, one authorizing it to convict him of aggravated assault and this was the one the jury returned.
Defendant contends that the offense of aggravated assault is not included in the crime of assault with intent to commit murder and as we view the record the assignment that the court erred in so advising the jury constitutes the one serious question presented by the appeal. Whether it should be sustained depends upon whether an aggravated assault is or is not included in the crime of assault with intent to commit murder.
An assault is defined by section 43-601, Arizona Code 1939, as "an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another," and, according to section 43-603 of the same code, becomes aggravated when it is committed under any of the following six circumstances:
The statute, section 44-1923, Arizona Code 1939, provides that "Upon an indictment or information for any offense the jurors may convict the defendant of... any offense which is necessarily included in the offense charged." This language, it is plain, limits lesser offenses of which a defendant may be convicted to those offenses which are necessarily included in the charge of the higher offense, but it has been a part of the statutes for may years, and has without exception been so construed as to permit the conviction also of a defendant of any lesser offense included in the greater by virtue of the fact that the circumstances constituting the lesser are properly alleged in the indictment or information charging the greater. For instance, a conviction of an assault with a deadly weapon, an offense not necessarily included in an assault with intent to commit murder, since the latter may be committed otherwise than by the use of a deadly weapon, has always been upheld where the indictment or information charges an assault with a deadly weapon with intent to commit murder. Mapula et al. v. Territory, 9 Ariz. 199, 80 P. 389; Territory v. West, 4 Ariz. 212, 36 P. 207; Hann v. State, 30 Ariz. 366, 247 P. 129.
And the same is true of an aggravated assault. One may be convicted of this offense on an information charging either an assault with intent to commit murder or murder itself, if the information sets forth circumstances which in themselves constitute it. Mapula v. Territory, supra. The information in this case was evidently drawn under subdivision 1 of section 44-711, Arizona Code 1939, providing that an indictment...
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...2006), although the precise relationship between and rationale behind the two "tests" remain unclear. See, e.g., State v. Hanks, 58 Ariz. 77, 81, 118 P.2d 71, 72-73 (1941) (observing longstanding practice of construing lesser-included offenses by reference to charging document); In re Jerry......
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