State v. Hoerner

• Decision Date: 27 September 1927
• Docket Number: No. 5411.,5411.
• Citation: 55 N.D. 761,215 N.W. 277
• Parties: STATE v. HOERNER.
• Court: North Dakota Supreme Court

55 N.D. 761

215 N.W. 277

STATE

v.HOERNER.

No. 5411.

Supreme Court of North Dakota.

Sept. 27, 1927.

Syllabus by the Court.

Where a defendant is informed against under the latter clause of section 9519 of the Code of 1913, he may be found guilty of the offense described in the first clause of section 9549 of the Code of 1913.

In a prosecution for assault and battery with a deadly weapon, with intent to kill, the burden of establishing self-defense or proving circumstances that justify the assault does not devolve upon the defendant, and it is reversible error to so place the burden of proof, even though the court may charge, in addition, that it is the duty of the jury to acquit if, on the whole evidence, they have a reasonable doubt as to whether the defendant acted in self-defense.

Additional Syllabus by Editorial Staff.

“Deadly weapon,” within Comp. Laws 1913, §§ 9519, 9549, denouncing assaults and assault and battery with weapons, with or without intent to kill, necessarily includes dangerous weapon.

Appeal from District Court, Oliver County; F. T. Lembke, Judge.

Anton Hoerner was convicted of assault and battery with a deadly weapon, with intent to do great bodily harm, but without intent to kill, and he appeals. Reversed and remanded.A. T. Faber and Crum & Crum, all of Bismarck, for appellant.

Robt. Dunn, of Center, and Wm. Langer and S. L. Nuchols, both of Bismarck, for the State.

BURR, J.

The defendant was informed against on the charge of assault and battery with a deadly weapon, with the intent to kill, and was found guilty of “assault and battery with a deadly weapon with intent to do great bodily harm, but without intent to kill.” Upon being sentenced to serve 1 year in the penitentiary, he appeals to this court under 17 specifications of error. Four of these specifications deal with the nature and the form of the charge lodged against the defendant. The remainder are leveled against the instructions given by the court to the jury.

[1] The information in this case was drafted under the latter clause of section 9519, Comp Laws 1913, stating “that at said time and place the said defendant-did intentionally, willfully, unlawfully, maliciously, and feloniously, with the intent to kill, with great force strike with a gun the person of Rone Bleth.” The verdict evidently had the provisions of section 9549 in mind. Section 9519 of the Code of 1913 was section 7115 of the Code of 1895, and section 9549 of the Code of 1913 is the same as section 7145 of the Code of 1895. It is the complaint of the defendant that the verdict returned was not justified under the provisions of section 9519, and amounted to no more than a verdict of guilty of assault and battery.

[3] A “deadly weapon” necessarily includesa dangerous weapon. As pointed out in the case of State v. Cruikshank, 13 N. D. 337, 342, 100 N. W. 697, 699, section 9519 contains two separate clauses to “be construed as if each * * * were separate sections, independent and exclusive of each other.” The same with reference to section 9549. The defendant is informed against under the second clause of section 9519 and is found guilty under the first clause of section 9549. In this case cited this court pointed out that the first clause of section 9549 “is merely a lesser degree of, and is necessarily included in, the offense defined” in the second clause of section 9519. In other words, where the defendant is prosecuted under the second clause of section 9519, he may be found guilty under the first clause of section 9549 as of a lesser offense. This is what was done in the case at bar, and there was no error in receiving such a verdict.

As stated in the case of State v. Cruikshank, supra, “the result is that the offense described in the second clause of section 7145, Rev. Codes 1899 [now Comp. Laws 1913, § 9549] is merely a lesser degree of, and is necessarily included in, the offense defined in the first clause of section 7115 [9519]. The same is also true of the first clause of section 7145 [9549] and the second clause of section 7115 [9519].” This analysis is carried out in the case of State v. Gunderson, 42 N. D. 498, 173 N. W. 791. Here the defendant was prosecuted under the first clause of section 9519 and was found guilty under the first clause of section 9549, which amounted merely to assault and battery. In the earlier case of State v. Johnson, 3 N. D. 150, 54 N. W. 547, it was held that one prosecuted under the provisions of the second clause of section 9519, which was section 6479 of the Code of that day (Comp. Laws 1887), could be “convicted of an assault and battery, armed with a dangerous weapon, ‘with intent to do bodily harm”’ being the first clause of section 9549 or section 6510 of the Compiled Laws of that day. In this Johnson Case the opinion says:

“It is conceded that the information upon which the accused was tried was framed under that part of section 6479 of the Compiled Laws * * * which provides that any person ‘who commits any assault and battery upon another by means of any deadly weapon, and by such other means or force as was likely to produce death, with intent to kill any other person, is punishable by imprisonment in the territorial prison [penitentiary] not exceeding 10 years.”’

Thus it is clear the prosecution was under the second clause of section 9519. The court proceeds to show that if in this Johnson Case the defendant had been found guilty of an “armed assault” he could have been sentenced under the provisions of the first clause of section 9549, Comp. Laws 1913, being section 6510 of that day; but owing to the failure to include the words “dangerous weapon” or similar words showing an armed assault, he was guilty only of assault and battery. In the case at bar, the defendant is found guilty of an armed assault. It is clear, therefore, that where one is prosecuted under the provision of the second clause of section 9519 he may be convicted under the first clause of section 9549 as that of an included and lesser offense.

Defendant excepts to certain portions of the charge on the ground the court assumed some of the necessary ingredients of the crime were proved, among others, that the charge assumed the defendant struck “with the intent to kill,” and thus invaded the province of the jury. Owing to the disposition of this case, we need not review these exceptions.

[2] A perusal of the evidence shows that the arrest grew out of a long-standing controversy which culminated in a family feud. It is the contention of the defendant, and his testimony tends to show, that any force which he used upon the complaining witness was used in defense of himself and members of his family. The question of self-defense therefore was in the case, and the court instructed with reference thereto.

Exception was taken to those portions of the charge where the court, in instructing on self-defense, said nothing with reference to the defense of a member of the family. The court had quoted section 9503 of the Code and then said, “The right of self-defense is founded upon the natural right of a man to protect himself against the unlawful assault of another upon him.” Similar statements were made in other portions of the charge. It is true, these...