State v. Jukanovich

Decision Date18 January 1915
Docket Number2699
Citation45 Utah 372,146 P. 289
CourtUtah Supreme Court
PartiesSTATE v. JUKANOVICH

Appeal from District Court, Third District; Hon. C. W. Morse, Judge.

Mike Jukanovich was convicted of an offense. He appeals.

REVERSED AND REMANDED with directions.

Weber &amp Olsen for appellant.

A. R Barnes, Atty. Gen., and E. v. Higgins and G. A. Iverson Asst. Attys. Gen., for the State.

FRICK, J. STRAUP, C. J., and McCARTY, J., concur.

OPINION

FRICK, J.

Appellant was charged in the information with having committed an assault with a "certain sharp instrument, the exact name of which is unknown," upon one Charles Schmoltz, "with the specific intent to take the life of him (the said Charles Schmoltz)." In other words, the appellant was charged under the statute (Comp. Laws 1907, Section 4178) in apt terms with having committed an assault with intent to murder said Schmoltz. The appellant pleaded not guilty to the information, and, upon a trial, the jury returned the following verdict:

"We, the jury impaneled in the above case, find the defendant guilty of assault with a deadly weapon, as charged in the information, with a recommendation of mercy."

There was but one count in the information. The State insists that the offense of which the jury found the appellant guilty was included within the charge contained in the information. This is denied by appellant, unless it be held that the charge that the assault was made with a "certain sharp instrument" is tantamount to charging that it was made with a "deadly weapon, instrument, or other thing," since the verdict, it is contended, is based on Comp. Laws 1907, section 4195, which reads as follows:

"Every person who, with intent to do bodily harm, and without just cause or excuse, or when no considerable provocation appears, or where the circumstances show an abandoned or malignant heart, commits an assault upon the person of another, with a deadly weapon, instrument, or other thing, is punishable by imprisonment in the state prison not exceeding five years, or by fine not exceeding $ 1,000 or by both."

The district court, after overruling a motion for a new trial, sentenced the appellant to serve a term in the state prison as in said section provided, and he appeals.

The principal error relied on is that the verdict of the jury does not support the judgment, and that the court erred in sentencing appellant to the state prison as for a felony. It is contended that the verdict finds the appellant guilty of a simple assault only, which constitutes a misdemeanor and not a felony.

It will be observed that the crime denounced by section 4195, supra, is an assault "with a deadly weapon, instrument, or other thing, with intent to do bodily harm." (Italics ours.) The jury, by their verdict, did not find that the assault was committed "with intent to do bodily harm" as provided by said section, but merely found that appellant was "guilty of assault with a deadly weapon." Assuming for the present, without deciding that in charging the assault in the information as having been committed with "a sharp instrument" is tantamount to a charge of having committed it with a "deadly weapon, instrument, or other thing," as provided in section 4195, yet there is nothing contained in the verdict from which it can be inferred that the assault was made "with the intent to do bodily harm," as provided by said section. The existence of such an intent constitutes an essential element of the crime denounced by said section, and, unless such intent is found, the crime there denounced has not been legally established. We think the rule is elementary that the verdict must, either in itself or by reference to the information or indictment, contain all the elements constituting the crime of which the accused is found guilty. The law in that regard is tersely stated by the Supreme Court of California in People v. Cummings, 117 Cal. at page 499; 49 P. at page 577, in the following words:

"A good verdict must contain, either in itself or by reference to the indictment, all the elements of the crime. If silent on some element of the crime, the verdict will not sustain a judgment."

See, also, Bishop's New Crim. Proc. section 1005.

No doubt in general practice the elements of the crime are usually found in the information or indictment to which reference is made by the verdict. It is, however, contended by the State that the jurors, by their statement in the verdict that they find appellant guilty "as charged in the information," made the finding certain. As we have already pointed out, however, there is but one count in the information, in which the appellant was, in apt terms, charged with having committed the assault with a "sharp instrument" with intent to murder. He was, however, also informally charged in the information with every other offense which is necessarily included within the offense which was in terms described therein. By using the word "informally" we merely mean that the included offenses, although not articulated in apt terms were nevertheless included in what was charged. The difficulty with the State's contention is that, if the instrument mentioned in the information is assumed to be a deadly weapon, then there were included in the information in this case several distinct offenses, of either one of which appellant could have been found guilty, namely, assault with a deadly weapon with the intent to do bodily harm, also that of "having upon him any deadly weapon with intent to assault another" (section 4340), also of an assault and battery, and of a simple assault. We thus have a number of offenses included within the main charge, at least one of which constituted a felony, while the others were misdemeanors. To find an accused guilty, therefore, "as charged in the information," still leaves us in doubt with respect to the precise offense of which he is found guilty in case the jury find him guilty of one of the included offenses. Of course, in case the accused is found guilty of the principal offense charged, then it is sufficient to find him "guilty as charged in the information," since the information then clearly indicates the offense of which he is found guilty.

In the case at bar, if it was desired to have the jury find an included offense, they should have been expressly directed that, if they found the appellant guilty of any included offense (and they should have been instructed just what offenses were included in the principal charge) then they should indicate in their verdict in apt terms the precise offense of which they found him guilty. This should always be done as nearly as it can be in the language of the statute, and the several forms of verdict should be carefully prepared or at least approved by the court. For example, if the jurors found the accused guilty of the offense set forth in section 4195, supra, as an included one, then they should have found him guilty of "an assault with a deadly weapon with intent to do bodily harm," if the charge was sufficient to include that offense, and not merely have found him guilty of "an assault with a deadly weapon," as was done. Had the jury found that the assault was committed "with the intent to do bodily harm" in addition to what they did find, they would then have included all the elements of the crime of which appellant was found guilty in their verdict, and thus the verdict would sustain the judgment. In view of the form of the verdict, however, such is not the case. To illustrate further Suppose one were charged with the principal offense in one count and with two included offenses in two separate counts in an indictment or information, and the accused pleads not guilty to all of the counts, and is put upon his trial, then suppose that, under proper instructions, the jury find him guilty upon the second or the third count in the information, both of which constitute merely included offenses, would a verdict of "guilty, as charged in the information," be sufficient? The question answers itself. If, however, the verdict were "guilty, as charged in the first count," or "guilty as charged in the second count of the information," it would clearly be sufficient, since all of the elements of the offense would then be found in the count referred to in the verdict. A general verdict "as charged in the information" would also be sufficient if the offense found by the verdict were charged or included in each count of the information. Such is, however, not the case here. Here the jury, in order to make their verdict good, were required to state the elements of the offense in their verdict, and in failing to do so they found the appellant guilty of a simple assault merely. To this effect are the authorities as we read them. Our statute (section 4195) was taken from the laws of California. See Laws Cal. 1850-53, p. 645. The section remained in force in that state until it was amended on February 14, 1872. See Kerr's Penal Code Cal. section 245. It is not very clear when section 4195 first became effective in the Territory of Utah. We first find it in Comp. Laws 1876 as section 1953, which is found on page 593 of that compilation. It was carried forward into Comp. Laws 1888 (2 C. L. 1888, section 4488). It is next found in R. S. 1898 as section 4195, and from there it was carried forward into our present compilation, as shown above.

The Supreme Court of California, on several occasions, has had the precise question before it which we have discussed so far. In People v. Vanard, 6 Cal. 562, the accused was charged with assault with intent to commit murder, and by the jury was found guilty of an "assault with intent to do bodily injury" as an included offense constituting a felony. The court held that the weapon...

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6 cases
  • State v. Anderton
    • United States
    • Utah Supreme Court
    • December 7, 1926
    ... ... [252 P. 283] ... and not necessary to the principal offense charged ... [69 ... Utah 60] The Attorney General calls our attention to two ... cases decided by this court, upon which he relies: ... State v. McDonald , 14 Utah 173, 46 P. 872, ... and State v. Jukanovich , 45 Utah 372, 146 ... P. 289. In the McDonald Case the defendant was charged with ... the crime of assault with intent to commit murder with a ... deadly weapon, to wit, a revolver, etc. He was found guilty ... of an assault with intent to do bodily harm. The validity of ... the judgment was ... ...
  • State v. Pickus
    • United States
    • South Dakota Supreme Court
    • November 15, 1934
    ...310, 115 P. 70; Donovan v. People (1905) 215 Ill. 520, 74 N.E. 772; People v. Lee (1908) 237 Ill. 272, 86 N.E. 573; State v. Jukanovich (1915) 45 Utah 372, 146 P. 289. Appellant further urges that the verdict returned by the jury in this case not only fails sufficiently to find that appella......
  • State v. Kakarikos
    • United States
    • Utah Supreme Court
    • January 28, 1915
    ... ... found all the essentials of that offense. To reach any other ... conclusion requires a verdict, in and of itself, and unaided ... by reference to the information, to specifically and ... expressly state all the essentials of the offense found. That ... is not required. State v. Jukanovich , 45 ... Utah 372; 146 P. 289. It matters little under which count ... they so found the defendant guilty, for both state all the ... essentials of that offense. We think there is no uncertainty ... as to this verdict, and hence no error was committed by the ... judgment rendered on it ... ...
  • State v. Gentry, 20185
    • United States
    • Utah Supreme Court
    • December 1, 1987
    ...was confused about a lesser crime since no lesser included offense instructions were given or requested. See, e.g., State v. Jukanovich, 45 Utah 372, 146 P. 289 (1915). Nor is this the type of case where the jury returned a verdict which created uncertainty as to which of multiple defendant......
  • Request a trial to view additional results

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