State v. Linville

• Decision Date: 10 November 1939
• Docket Number: 34403.
• Citation: 95 P.2d 332,150 Kan. 617
• Parties: STATE v. LINVILLE.
• Court: Kansas Supreme Court

95 P.2d 332

150 Kan. 617

STATE v. LINVILLE.

No. 34403.

Supreme Court of Kansas

November 10, 1939

Syllabus by the Court.

Criminal intent is an essential element of offense of assault. Gen.St.1935, 21-436.

Criminal intent may be inferred from facts and circumstances which legitimately permit such inference.

In determining whether criminal intent, as an essential element of a crime, is present, every man of sane mind is presumed to intend the reasonable and natural consequences of his own acts.

An accused may be guilty of a "criminal assault and battery" if he intentionally does an act which by reason of its wanton and grossly negligent character exposes another to personal injury and in fact causes injury. Gen.St.1935 21-436.

An "assault" is an attempt to commit a violent injury upon the person of another; an attempt to offer, with force or violence, to do a corporal hurt to another, whether from malice or wantonness, with such circumstances as denote at the time an intention to do it coupled with a present ability to carry such intention into effect; and an offer or attempt to do a corporal injury to another.

Whether accused was guilty of simple assault was for jury. Gen.St.1935, 21-436.

In prosecution for manslaughter in second degree and offenses included within such offense, court's failure to define the term "assault," and court's omission of word "beat" from the assault statute read to jury did not require reversal, where no specific objection was made to instructions and no fuller instructions were requested, and it was not contended that state's argument on the subject of assault was contrary to or inconsistent with a proper instruction on the subject of assault. Gen.St.1935, 21-436, 62-1718.

The Supreme Court is not permitted to reverse a judgment of conviction in absence of showing that substantial rights of accused were affected by alleged errors or defects relied upon. Gen.St.1935, 62-1718.

1. Whether an accused intended to commit an offense may be inferred from facts and circumstances which legitimately permit such an inference, and where such facts and circumstances exist, a demurrer to the evidence, on the ground such intent is lacking, is properly overruled.

2. The record in a criminal action examined and held: (1) The demurrer to the state's evidence was properly overruled (2) Specifications of error pertaining to insufficiency of instructions examined and found not to constitute reversible error.

Appeal from District Court, Woodson County; Wallace H. Anderson Judge.

Paul Linville was convicted of simple assault, and he appeals.

Affirmed.

Frederick G. Apt, of Iola, for appellant.

Jay S. Parker, Atty. Gen., A. B. Mitchell, Asst. Atty. Gen., and Mitchell H. Bushey, Co. Atty., and J. C. Edwards, both of Iola, for the State.

WEDELL Justice.

This is an appeal from a conviction of simple assault. Defendant had been previously tried and convicted of manslaughter in the second degree. This court reversed that judgment for trial errors and remanded the case for retrial. State v. Linville, 148 Kan. 142, 79 P.2d 869. The first action was tried in Allen county, where the alleged offense occurred. The retrial was had in Woodson county in response to a change of venue requested by the defendant. The subject of venue, however, is not involved in this appeal.

In the instant case a demurrer was lodged against the state's evidence on the ground no offense of any kind was established. The demurrer was sustained as to the charge of manslaughter in the second degree but overruled as to the lesser offenses included within the greater charge, namely, manslaughter in the fourth degree and simple assault. Defendant was convicted only of the latter offense. The state has not cross-appealed and we need therefore consider only such portions of the record as pertain to the offense of simple assault.

Defendant first contends his demurrer should have been sustained even as to that offense. In the instant case we must again invoke the rule that in passing on a demurrer to the evidence, the court is concerned only with that evidence and reasonable inferences to be drawn therefrom which support or tend to support a cause of action or defense. Bray v. Cooper, 145 Kan. 642, 646, 66 P.2d 592. We must also again invoke the rule that such evidence and reasonable inferences to be drawn therefrom must be considered in the light most favorable to the party adducing it. Walker v. S. H. Kress & Co., 147 Kan. 48, 75 P.2d 820. With these principles in mind we shall consider only such portion of the state's evidence as established or tended to establish the offense of assault. The substance of that evidence was:

Defendant operated a night club or road house a short distance from the city of Iola. A man by the name of Ab Lanferman had frequented the night club on two occasions on the night in question. He first came there between the hours of ten and eleven o'clock. On his first visit he showed definite signs of intoxication, but appeared able to take care of himself. He returned at about one o'clock in the morning. He had been drinking and was talking loudly and was somewhat annoying to others in the place. He ordered some whisky but instead of drinking it, he poured it out on the bar. The defendant went to the end of the bar where Lanferman was then standing, and grabbed him by the arm and pushed him toward the door. He put his arm around Lanferman as they were going toward the door. Lanferman appeared to resent being taken out. Defendant appeared to be angry. The wooden door was not closed, but the screen door was closed. When they got to the door, Lanferman swung around facing the defendant. When they were right in the doorway defendant had his left hand on Lanferman's shoulder, and with his right hand pushed or shoved him backward through the doorway. There were three steps from the floor to the cement sidewalk which was a distance of about two feet. Lanferman fell to the sidewalk and was lying on his back. Defendant rendered aid and called a doctor. Defendant advised a state's witness: "He had just put up with Lanferman enough." Lanferman was taken to a hospital. He was semiconscious over a period of about fifteen days and died.

A physician testified in substance: He thought death was caused by a head injury at or near the base of the skull, probably brought about by the object on which Lanferman had fallen, but that the X-ray did not reveal a skull fracture. Alcohol might have been one of the contributing causes of his death.

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