State v. Heath

• Decision Date: 04 February 1910
• Citation: 106 P. 756,57 Wash. 246
• Parties: STATE v. HEATH.
• Court: Washington Supreme Court

106 P. 756

57 Wash. 246

STATE v. HEATH.

Supreme Court of Washington

February 4, 1910

Department 1. Appeal from Superior Court, Thurston County; John R Mitchell, Judge.

John H Heath was convicted of assault, and he appeals. Reversed with directions.

G. C Israel, for appellant.

GOSE, J.

A complaint was filed against the appellant in the justice court of Thurston county, the body of which is as follows: 'D. W. Simmons, being first duly sworn on oath, says that, at Mud Bay, in said Thurston county, state of Washington, on the 10th day of April, A. D. 1908, Jack Heath did commit the crime of assault with a deadly weapon with intent to do as follows: Then and there being the said Jack Heath did assault D. W. Simmons with a deadly weapon, to-wit, a shotgun, thereby showing a willful and abandoned heart, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the state of Washington.' The transcript of the record in the justice court recites prior to the hearing on the motion of the prosecuting attorney 'that the charge of assault with a deadly weapon be reduced to the charge of assault, it was so ordered.' The complaint, however, remained as stated. The case was thereupon tried to a jury, the appellant found guilty, and his fine assessed at $1 and costs. Upon an appeal to the superior court the case was again tried to a jury on the same complaint, the appellant found guilty of assault, and a judgment entered thereon, from which the appeal is prosecuted.

At the trial in the superior court the appellant objected to the introduction of any evidence on the ground that the complaint does not charge a crime or offense, and at the close of the state's evidence moved for a nonsuit. The objection to the evidence should have been sustained. The complaint was doubtless drawn with the intention of charging the appellant with an assault with a deadly weapon with an intent to inflict a bodily injury where no considerable provocation appears under the provisions of the Code. 2 Ballinger's Am. Codes & St. § 7058 (Pierce's Code, § 1575). It is obvious that the complaint was insufficient for that purpose. The Constitution (article 1, § 22) provides that in criminal prosecutions the accused shall have a right 'to demand the nature and cause of the accusation against him.' The appellant was tried in each instance as for an assault. The Code (2 Ballinger's Ann. Codes & St. § 7055 [Pierce's Code, § 1572]) thus defines this offense: 'An assault is an attempt in a rude, insolent, and angry manner, unlawfully to touch, strike, beat, or wound another person, coupled with a present ability to carry such attempt into execution.' All courts agree that an offense is charged by the statement of the material facts which constitute it, and not by the statement of a mere conclusion of law. The phrase 'did assault' is the conclusion of the pleader, and not the averment of a material fact. State v. Smith, 74 Ind. 557. There is no allegation that the appellant attempted to or did touch, strike, beat, or wound another person, nor that he had the present ability to carry the attempt into execution. We have held that it is not necessary to use the words of the statute if others of like import are used, and that an information which properly charges a consummated assault and battery will support a judgment for assault. State v. Bohn, 19 Wash. 36, 52 P. 325.

The complaint should have alleged that the appellant had the present ability to carry the attempt into execution, either in the language of the statute or in equivalent words. State v. Hubbs, 58 Ind. 415. The statute is simple, and its meaning plain, and convictions cannot be permitted to rest upon complaints drawn in utter disregard of the constitutional rights of the accused. No brief has been filed on behalf of the respondent, and we have not therefore had the benefit of the state's view of the case.

The complaint failing to state an offense, the superior court was without appellate jurisdiction. The judgment will be reversed, with directions to dismiss the case.

RUDKIN, C.J., and MORRIS, J., concur. CHADWICK, J., concurs in the result.

FULLERTON J.

I am unable to concur either in the reasoning or the conclusion of the majority as expressed in the foregoing opinion. The case itself is unimportant, and, so far as it affects the immediate actors, might be allowed to pass without notice, but the principle announced by the decision is to my mind far reaching, and such a radical departure from the rules of criminal pleading heretofore thought to be governing in this state that I am justified in expressing the grounds of my dissent.

The majority hold, as I understand the opinion, that it is no longer sufficient in this state, where the purpose is to charge one person with an assault upon another, to simply use the expression, 'did make an assault,' but that it is necessary to go further, and incorporate in the charge the statutory definition of the offense. This means that, instead of alleging, as the pleader has practically done in this instance, 'that Jack Heath, in the county of Thurston, in the state of Washington on the 10th day of April, 1908, in and upon one D. W. Simmons with a deadly weapon, to wit, a shotgun, an assault did make,' it is necessary to allege 'that Jack Heath, in the county of Thurston, in the state of Washington on the 10th day of April, 1908, in and upon one D. W. Simmons with a deadly weapon, to wit, a shotgun, did then and there attempt in a rude, insolent, and angry manner unlawfully to touch, strike, beat, and would said D. W. Simmons, he, the said Jack Heath, being then and there coupled with a present ability to carry such attempt into execution.' This holding, I will undertake to show, is not only contrary to the rule of the common law, but contrary to the rule of every state of the Union that has passed upon the question, save the state of Indiana. That it is contrary to the common-law rule will be at once conceded. From the earliest times it has been held sufficient at common law to charge a simple assault with the words 'did make an assault' without further definition or description of the offense or further statement of the facts constituting the assault; the governing principle being that the word 'assault' carried with it is definition, and hence to allege that one person assaulted another was to allege that he did those acts which the law defined as constituting an assault. Thus in the form given by Chitty, quoted by Bishop in his Directions and Forms, at page 102, the allegation charging the assault is in the words 'did make an assault,' and Mr. Bishop himself, commenting upon the allegations necessary to a complete charge, gives no other essential necessary to a common-law charge of simple assault. He says the word 'assault' is a 'true technical word,' and includes the idea of illegality, maliciousness, and unlawfulness, and that the indictment need not allege that the act was done maliciously, illegally, or unlawfully, although, he adds, the rule might be different where the indictment is under a statute containing these terms. Bishop's New Crim. Pro. § 5758. And in Wharton's Precedents, form 214, the allegation charging the offense is made in the words 'did make an assault.' It is noticeable here, also, that the author makes no use of the words 'willfully' or 'unlawfully,' treating them as nonessential to a sufficient indictment for the offense at common law. So, also, the precedents in 2 Ency. of Form, p. 234. The authority of these authors is such that nothing further is needed to prove the common-law rule. The cases from the American courts where this precise question has been passed upon are not numerous as one would expect to find them, but such as there are, with the exception mentioned, follow the common-law rule. Thus in Bloomer v. State, 3 Sneed (Tenn.) 66, a leading case on the question, the defendant was indicted for assaulting one Minor, the charge being that the defendant at a certain time and place 'did unlawfully make an assault upon the body of one John Minor,' and 'other wrongs to the said Minor then and there did,' etc. It was contended by the defendant that the offense was not sufficiently described as the indictment did not set out the particular acts constituting the offense, but the state insisted that the words "did unlawfully make an assault upon * * * Minor,' ex vi termini, meant that the defendant made an attempt or offer to do violence to the person of Minor, coupled with a present ability to do so,' and the court so held.

The same question was presented in Roberson v. State, 15 Tex.App. 317. Discussing it, the court said: 'It is true that the simple allegation that the defendant 'did make an assault' is merely an allegation of a conclusion of law, and ordinarily would be insufficient, the general rule being that an indictment, to be sufficient, must allege the acts or omissions which constitute the offense. * * * But this form of indictment has always been held good at common law, and in our own state, for the offense of an assault, and at the time of the adoption of our several state Constitutions was recognized and known as a valid indictment and must therefore be considered as such within the meaning of the Constitution and the provisions of the Code of Criminal Procedure. Were the question as to the sufficiency of such an indictment an open one, we might hesitate to hold that it was sufficient. It seems to the writer that to so hold would be inconsistent with the general rule applicable to indictments--that the facts constituting the offense must be alleged, and not conclusions of law. But the question is too well settled to be now inquired into, and we therefore...