State v. Kakarikos

• Decision Date: 28 January 1915
• Docket Number: 2661
• Citation: 45 Utah 470,146 P. 750
• Court: Utah Supreme Court
• Parties: STATE v. KAKARIKOS

146 P. 750

45 Utah 470

STATE v. KAKARIKOS

No. 2661

Supreme Court of Utah

January 28, 1915

Appeal from District Court, Third District; Hon. M. L. Ritchie Judge.

Gust Kakarikos was convicted of assault with a deadly weapon. He appeals.

REVERSED AND REMANDED.

Willard Hanson for appellant.

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

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

OPINION

STRAUP, C. J.

The defendant was informed against by two counts in the information. In the first it is charged that he unlawfully, willfully, feloniously, deliberately, and with malice aforethought, etc., and with the specific intent to take the life of one Regis, made an assault on him "with a certain gun, commonly called a revolver, loaded with gunpowder and leaden bullets" held in the hands of the defendant, and unlawfully, willfully, feloniously, deliberately, and with malice aforethought, discharged it and shot "upon and against the body" of Regis, inflicting on him "a grievous wound." In the second count it is charged that the defendant "willfully, unlawfully, and feloniously, with intent to do bodily harm to" Regis, "and without just cause or excuse, and without any considerable provocation, did make an assault in and upon the person of said Regis with a deadly weapon commonly called a revolver, loaded with gunpowder and leaden bullets, which the said defendant then and there had and held in his hand, and aimed said weapon at and fired upon the said Regis." The case was submitted to the jury on both counts, and upon the included offenses, battery and simple assault. The jury found him "guilty of the crime of assault with a deadly weapon as charged in the information." Upon that verdict the defendant, over his objection, was sentenced to imprisonment in the state prison for an assault with a deadly weapon, a felony. His contention is that the jury, by their verdict, found him guilty only of an assault, a misdemeanor, and that the court therefore could not lawfully have sentenced him for any higher offense. The point made in such respect is that since the offense of simple assault was included in both counts, and the offense of an assault with a deadly weapon stated in the second and included in the first count, the jury, to convict the defendant of an assault with a deadly weapon, was required to state in their verdict all the essentials constituting that offense; that this was not done, because it was not expressly stated in the verdict that the assault was made "with the intent to do bodily harm"; and, since that was not so stated, the defendant was found guilty of but an assault.

An "assault," as defined by the statute (Comp. Laws 1907, section 4190), "is an unlawful attempt, coupled with a present ability to commit a violent injury on the person of another"; an "assault with a deadly weapon" (section 4195), "every person who, with intent to do bodily harm, and without just cause or excuse, or when no considerable provocation appears, or when 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," etc. True it is that before one may properly be convicted of an offense all the essentials thereof must be found. And, to properly convict the accused of an assault with a deadly weapon, undoubtedly required a finding that the assault was made with a deadly weapon, with the intent to do bodily harm, and without just cause or excuse, etc. A verdict of course, should not be open to doubtful meaning as to the offense of which the accused was found guilty. He, let it be conceded, is entitled to have such doubt, if any there be, resolved in his favor. And if on this verdict it should not be certain as to whether the defendant was found guilty of an assault, or of an assault with a deadly weapon, he is entitled to have the uncertainty resolved in his favor. In ascertaining what the jury intended and found, the language used in the verdict should be given its fair and obvious meaning. The verdict is, guilty of an "assault with a deadly weapon as charged in the information." That is, the defendant unlawfully attempted, coupled with a present ability, and with a deadly weapon, to commit a violent injury "as charged in the information." How was it charged? In the first count, that the defendant unlawfully, willfully, feloniously, deliberately, premeditatedly, with malice aforethought, and with the specific intent to take the life of the person named in the information, shot him with a loaded revolver, inflicting on him a grievous wound; in the second, willfully, unlawfully, feloniously, and with the intent to do bodily harm, and without cause or excuse, etc., made an assault upon him with a loaded revolver and "aimed it at" and "fired it upon" him. With these specific descriptions in each count, both as to the deadly weapon and the intent and manner with which it was used and the assault made, direct reference to which is made by the verdict, there can be no doubt that the defendant was found guilty of an assault with a deadly weapon as defined by the statute, and that the jury by their language necessarily 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.

The alleged assault grew out of a controversy between the defendant and Regis over a strike in Bingham. The defendant, at that place, was engaged in the butcher business, and was not in sympathy with the strike. Regis, who had been in the employ of a mining company involved in the strike, was a participant in the strike and was in sympathy with it. It is unnecessary to go into the particulars of that. The State adduced evidence to show that the defendant, on the 6th of March, 1913, as Regis was passing the defendant's place of business, called to him, upbraided him, struck him in the face, hit him on the head with a revolver, and shot him in the neck, inflicting a serious wound; and that Regis was unarmed and had done nothing to provoke the assault. The defense was self-defense. To support it, the defendant adduced evidence to show that the reputation of Regis for peace and quietude was bad; that, because of defendant's attitude towards the strike, Regis, on divers occasions prior to the assault, threatened to drive him out of Bingham, to take his life, "fill him full of bullets," some of which threats were made in the defendant's presence and others communicated to him. The defendant, fearing injury at the hands of Regis, complained to an officer at Bingham and asked permission to arm himself. The permission was given in writing. On the day of the assault, Regis, meeting the defendant in front of the latter's place of business, then threatened to kill him, grabbed him by the throat, struck him in the face, and reached for a gun in his side coat pocket. The defendant, seeing a part of the gun in the hands of Regis as he was about to draw it, quickly drew him gun and shot Regis. Thus, as to the immediate circumstances of the assault, the record presents an irreconcilable conflict in the evidence.

The court, on the defendant's theory, charged with respect to the law of self-defense. In that connection the court charged:

"You are instructed that 'great bodily harm' means something more than injuries that ordinarily result from a battery inflicted by the hand or fist without a weapon or other instrument calculated to inflict a serious injury."

Complaint is made of this. The language, in view of the evidence, is not apt. It, however, is clear that what was meant by it is that "great bodily harm," as used in the criminal law, meant something more than a slight or moderate injury, such as ordinarily results from a battery by a mere strike by the hand or fist and from which only slight or moderate injury is likely to be suffered. Many such batteries are only that, and, of course, do not constitute what, in the criminal law, is meant by "great bodily harm or injury." Still, there may be batteries of that character by a powerful man inflicted with such force by his fists and carried to such severity as to produce great bodily harm or injury. Certainly one of but ordinary physical ability pounced upon and beaten by a "big bully," or a powerful ruffian, with his fists, may, under the law of self-defense, resort to such force as is reasonably necessary to protect himself, even to the extent of taking the life of his assailant. Whether, in a given case, the injury inflicted or threatened is the one or the other, whether the injury or harm inflicted or threatened is great bodily harm or injury, or is only slight or moderate, is, ordinarily, for the jury. Lambert v. State, 80 Neb. 562; 114 N.W. 775; Rogers v. State, 60 Ark. 76; 29 S.W. 894; 31 L. R. A. 465; 46 Am. St. Rep. 154. Perhaps the most that may be urged against the charge is that it was not applicable to the evidence on the theory of either party. Neither the State nor the defendant, by evidence or otherwise, claimed that Regis had but struck the defendant, and for that reason the defendant had or had not cause to believe great bodily harm was about to be inflicted upon him. The State claimed, and adduced evidence to support it, that Regis had done...