State v. Hix

• Decision Date: 02 May 1939
• Docket Number: 6670
• Citation: 60 Idaho 224,90 P.2d 694
• Parties: STATE, Respondent, v. DOUGLAS HIX, Appellant
• Court: Idaho Supreme Court

90 P.2d 694

60 Idaho 224

STATE, Respondent, v. DOUGLAS HIX, Appellant

No. 6670

Supreme Court of Idaho

May 2, 1939

CRIMINAL LAW-ASSAULT AND BATTERY-EVIDENCE-STATEMENT OF THIRD PARTY-RES GESTAE-SELF-DEFENSE-INSTRUCTIONS-SPECIAL INSTRUCTIONS.

1. Conflicting evidence sustained conviction for assault with deadly weapon.

2. In prosecution for assault with deadly weapon, admission of testimony of victim, who had initiated the altercation and then had withdrawn, that unidentified person had said, not in presence of accused, that accused took victim's money was error on ground evidence was immaterial and not part of res gestae, but in view of whole record and jury's recommendations that leniency be extended and that accused's counsel first brought up subject-matter involved in the inadmissible testimony, the error was not prejudicial.

3. In prosecution for assault with deadly weapon, failure to charge that accused had right to continue his self-defense as long as danger continued, or appeared to him to continue, was not error where matter was fully covered by given instruction.

4. A defendant who desires special instruction on any particular phase of his case must request an instruction thereon otherwise he cannot complain of failure of court to cover the particular point.

APPEAL from the District Court of the Ninth Judicial District, for Fremont County. Hon. C. J. Taylor, Judge.

Appeal from judgment of conviction for crime of assault with a deadly weapon. Affirmed.

Affirmed.

Kenneth S. Mackenzie, for Appellant.

The failure to charge that the defendant had the right to continue his self-defense as long as the danger appeared to him, is error. (Culp v. State, 58 Tex. Crim. 74, 124 S.W. 946.)

If the evidence can be reconciled either with the theory of innocence or of guilt, the law requires that the theory of innocence be adopted. (State v. Hurst, 36 Idaho 156 209 P. 724.)

J. W. Taylor, Attorney General, and R. W. Beckwith, Assistant Attorney General, for Respondent.

An omission to instruct on a particular point cannot be assigned as error where no instruction on the point has been requested by appellant. (State v. Patterson, ante, p. 67, 88 P.2d 493; State v. Smailes, 51 Idaho 321, 5 P.2d 540; State v. Jurko, 42 Idaho 319, 245 P. 685.)

AILSHIE, C. J. Givens, J., concurs, Morgan, J., concurs in the conclusion. Budge, J., sat at the hearing but took no part in the decision. Holden, J., did not sit at the hearing and took no part in the decision.

OPINION

AILSHIE, C. J.

--Appellant was convicted of the crime of assault with a deadly weapon (an open pocket knife) on the person of one Weeding. The altercation and fight took place in a beer parlor known as Lafe's Place in St. Anthony, the evening of July 22, 1937. During the afternoon and evening of that day, Weeding had been drinking beer, and some hard liquor, and shooting craps. After receiving a ten-dollar bill and placing same in a billfold in his pocket, Weeding said he was told by someone that appellant had taken or stolen his money from him. He was then in the cardroom and he thereupon went to appellant, who was at the bar in the front room, and hit him a couple of times with his fist, knocking him down. Appellant got up and asked Weeding why he hit him and then walked out of the beer parlor but returned in about two minutes. Coming up to Weeding he again asked him: "What did you hit me for?" An encounter then occurred between them, during which appellant inflicted twelve cuts on Weeding's shoulder, face and ear with a pocket knife. Appellant testified he had been cleaning his finger nails at the time Weeding first accosted him; that, when going back into the room and striking at Weeding, he didn't know he had the knife in his hand. He testified that he did not even know he had used the knife "until after the fight was over." In the excitement, he "didn't remember having the knife."

The jury returned a verdict coupled with recommendations as follows:

"We, the jury, duly impaneled and sworn to try the above entitled cause, find the defendant Douglas Hix guilty of Assault with a deadly weapon, as charged in the information.

Dated this 26th day of October, A. D. 1938.

R. A. GROVER, Foreman

The jury herein recommend to your Honor that leniency be used herein in passing judgment on defendant.

R. A. GROVER, Foreman

We further recommend that legal proceedings be instituted to prosecute and punish said Russell Weeding for his part in a charge of battery against defendant, Douglas Hix.

R. A. GROVER, Foreman."

The court entered judgment against the defendant and imposed a penalty of from six months to two years in the state penitentiary and commuted the sentence to six months in the county jail and payment of costs. This appeal is from the judgment.

The first contention made here is that the evidence is not sufficient to support the verdict of conviction. An examination of the evidence as contained in the record leads us to the conclusion that a jury could very well find upon the whole case that the defendant made an assault with a deadly weapon. It is apparent that complainant Weeding made the first assault and committed a battery on appellant, and the latter withdrew from the conflict, as he asserts, for the purpose of calling an...