State v. Hazen
| Decision Date | 26 January 1946 |
| Docket Number | 36468. |
| Citation | 165 P.2d 234,160 Kan. 733 |
| Parties | STATE v. HAZEN. |
| Court | Kansas Supreme Court |
Rehearing Denied March 15, 1946.
Appeal from District Court, Comanche County; Karl Miller, Judge.
Albert Hazen was convicted of simple assault, and he appeals.any was not detrimental to his rights.
Syllabus by the Court.
The record in a prosecution for simple assault examined, and held: (1) Divers attacks on the information, based upon the premise it failed to state a public offense, were properly overruled, (2) evidence adduced by the prosecution was sufficient to withstand a demurrer, and (3) no error appears in the instructions submitted or in the action of the trial court in refusing to give certain instructions as requested.
Robert C. Mayse, of Ashland, for appellant.
A. B Mitchell, Atty. Gen., Leon W. Lundblade, Asst. Atty. Gen and Horace H. Rich, Co. Atty., of Coldwater, for appellee.
Defendant was convicted by a jury of simple assault and subsequently adjudged to pay a fine of $100 and costs. He brings his case here by appeal. Questions presented for review are sufficiency of (1) the information, (2) the evidence, and (3) the instructions.
The information charged that on May 5, 1945, in a public place in Comanche county the defendant, Albert Hazen, did then and there 'unlawfully and willfully assault one Otto Schumacher and Joe Schumacher by cursing and threatening to do bodily harm to Otto Schumacher and Joe Schumacher and causing said Otto Schumacher and Joe Schumacher to have just cause to fear and that they do fear the commission of an assault with intent to do bodily injury or harm.' Sufficiency of the quoted allegations was challenged by defendant during the course of the proceedings leading up to the rendition of judgment by a motion to quash, an objection to the introduction of testimony, and a motion in arrest of judgment, each challenge being based upon the specific premise the facts as stated in such information did not constitute a public offense.
It appears from the record, although it is of little, if any, importance in determination of the appeal, that for some time ill feeling had existed between the defendant and Joe and Otto Schumacher as a result of the Schumachers' attempt to fence some land, completely surrounded by land owned by defendant, and recently purchased by Otto, which tract prior to its sale had been rented by the defendant. This ill feeling culminated in a series of events which transpired in the city of Protection and eventually brought about the filing of the present criminal action. The first of these, which took place at the railroad depot and involved the defendant and Joe Schumacher, requires little attention since on motion the state elected not to rely on what occurred there as establishing the commission of the offense charged. It suffices to say as to it that the defendant came into the depot, commenced an altercation with Joe Schumacher, made some threats, shook his fist in Joe's face, and walked out after the depot agent remarked that if there was any arguing to do it would have to be done outside the depot.
The second event of the series to which we have heretofore referred is the one of vital concern on this appeal. The state elected to rely on the evidence pertaining to it for conviction and contends such evidence establishes the offense charged in the information. It followed the altercation at the depot and took place at a blacksmith shop. With respect to it the testimony of the prosecution shows that later in the day when Joe had joined his father, Otto, and while they were there attending to some business, the defendant came to the blacksmith shop and engaged them in a conversation relating to the rights of the respective parties to the land of which prior mention has been made. Shortly the conversation became heated and then ensued the action and conduct by defendant on which the prosecution relies to uphold his conviction. Since the parties are not in accord as to the import to be given such acts and conduct we detail certain phases of the happenings in form as described by some of the witnesses.
Otto Schumacher testifying for the prosecution, on direct examination, was asked questions to which he made answer as follows:
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Cross examination of this same witness discloses the following questions and answers:
'Q. He didn't say: I am going to knock the hell out of you here? Yes or no? Can you answer? A. I say, yes.
If I had made one move, he would have done it.
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Certain questions propounded to and answers made by Kenneth Wymer, a witness for the state, the owner of the blacksmith shop, read:
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On cross examination these questions and answers appear as part of Wymer's testimony:
Another witness stated in effect that while the defendant did not hit Otto he could have hit him so that he would not have known what happened to him.
No useful purpose would be served in setting out the testimony of the defendant at length. It can be summarized thus: He admitted he came to the blacksmith shop and engaged the Schumachers in conversation, and that while there talking to Otto he had his fists doubled up; he inferentially conceded, if in fact he did not actually admit, he shook his fist in Otto's face; he stated in language which would do no credit to this opinion that if Otto did not stay off the land in controversy he would kick his posterior portions; and finally he denied he ever had any intention of hitting Otto or that he threatened to either strike or stomp him into the ground while the latter was at the blacksmith shop.
The only other witness who testified on defendant's behalf corroborated his version of the affair.
In giving consideration to the information as challenged by appellant we must keep in mind the requirement of the common law, it is essential to the validity of an information that it conform strictly to established formality and charge an offense with technical accuracy and nicety of language, is no longer in force and effect in this jurisdiction. By legislative fiat that has been dispensed with and in lieu thereof has been substituted a far more simple rule. State v. White, 14 Kan. 538.
For the moment, and before resort to our decisions, we turn to the statute for such guidance as is there to be found.
Appellant stands charged by information with the offense of simple assault as set forth in G.S.1935, 21-436, which reads:
'Any person who shall assault, or beat or wound another under such circumstances as not to constitute any other offense herein defined, shall upon conviction thereof be fined in a sum not exceeding five hundred dollars, or by imprisonment not exceeding one year.'
The form of such information is controlled by other statutory provisions dealing with informations generally.
With respect to their content G.S.1935, 62-1004, provides:
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Baska v. Scherzer, 94,879.
...resulting in immediate apprehension of bodily harm. No bodily contact is necessary." PIK Civ.3d 127.01; see State v. Hazen, 160 Kan. 733, 740-41, 165 P.2d 234 (1946). Battery is defined as "the unprivileged touching or striking of one person by another, done with the intent of bringing abou......
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...not sufficiently proximate to the intended battery to constitute an assault. Id. at 524-545, 5 N.W. 982.10 See, e.g., State v. Hazen, 160 Kan. 733, 740, 165 P.2d 234 (1946); State v. Deso, 110 Vt. 1, 1 A.2d 710 (1938); State v. Daniel, 136 N.C. 571, 48 S.E. 544 (1904).11 Defendant's threat ......