State v. Linville

• Decision Date: 29 December 1928
• Citation: 127 Or. 565,273 P. 338
• Parties: STATE v. LINVILLE.
• Court: Oregon Supreme Court

273 P. 338

127 Or. 565

STATE v. LINVILLE.

Supreme Court of Oregon

December 29, 1928

Department 2.

Appeal from Circuit Court, Deschutes County; T. E. J. Duffy, Judge.

S. C Linville was convicted of assault with a dangerous weapon and he appeals. Reversed and remanded.

I. H. Van Winkle, Atty. Gen., and L. A. Liljeqirst of Portland (N. G. Wallace, of Prineville, on the brief), for appellant.

G. H. Brewster, of Redmond (A. J. Moore, Dist. Atty., of Bend, and D. G. Burdick, of Redmond, on the brief), for the State.

BEAN J.

The defendant, S. C. Linville, a state prohibition officer, was indicted jointly with L. L. McBride, also a state prohibition officer, charging them with the crime of an assault with a dangerous weapon. Defendant Linville was convicted of the crime as charged and fined in the sum of $250. Defendant McBride was found not guilty. The charging part of the indictment is as follows:

"That said S. C. Linville and L. L. McBride on the 7th day of April, A. D. 1928, in the said county of Deschutes and state of Oregon, then and there being, and then and there acting jointly together and in conjunction with each other, did then and there purposely, wilfully, unlawfully and feloniously assault one John W. Dennis with said dangerous weapon, to wit: An electric flash-light, said electric flash-light consisting of a metal and glass case, inclosing electric batteries, being cylindrical in form, of a length of twelve inches more or less, and of a weight of two pounds more or less, by then and there striking, beating and bruising said John W. Dennis about the face and head with said weapon, and said weapon as so used in said assault was and is a dangerous weapon, contrary to the statutes," etc.

It will be necessary to refer to only one defendant.

A demurrer was filed to the indictment by the defendant for the reason that it did not state facts sufficient to constitute a crime, or conform to the requirements of the Code. The demurrer was overruled, and defendant assigns error in such ruling.

It is contended that the indictment is insufficient for the reason it does not allege that the defendant was "armed with a dangerous weapon." The indictment was brought under section 1923, Or. L., which provides as follows:

"If any person, being armed with a dangerous weapon, shall assault another with such weapon, such person, upon conviction thereof, shall be punished," etc.

Section 1437, Or. L. (subd. 2), requires the indictment to contain a statement of the acts constituting the offense in ordinary and concise language without repetition and in such a manner as to enable a person of common understanding to know what is intended. Section 1448, Or. L. (subd. 6), is to the same effect.

Section 1447, Or. L., provides that words used in a statute to define a crime need not be strictly pursued in the indictment, but other words conveying the same meaning may be used. While the indictment does not use the words "armed with a dangerous weapon," the fact that the defendant was armed is clearly expressed in the indictment in other language, and the instrument with which the assault is alleged to have been made is described, and it is alleged that the same, as so used, was a dangerous weapon. There is no specific form for an indictment for the crime of an assault with a dangerous weapon provided in the statute.

It is not necessary that the indictment follow any particular form or that it follow the statute. State v. Parr, 54 Or. 316, 103 P. 434; State v. Sommer, 71 Or. 206, 142 P. 759; State v. Branton, 49 Or. 86, 88, 87 P. 535. It is sufficient where the acts charged as a crime are set forth with a sufficient degree of certainty so as to inform the defendant of the offense with which he is charged and enable a person of common understanding to prepare for a defense. State v. Frasier, 94 Or. 90, 180 P. 521, 184 P. 848; State v. Rosasco, 103 Or. 343, 352, 205 P. 290; State v. Jewett, 48 Or. 577, 586, 85 P. 994.

The indictment is, in substance, the same as the form in such cases suggested in 1 McLain on Crim. Law, p. 226, § 261. We think the indictment charges the defendant with a crime which is distinctly set forth in ordinary language in such a manner as to enable the defendant, as a person of common understanding, to know with what he is charged and is sufficient. The indictment is not a good model and the language thereof could be improved. There was no error in overruling the demurrer.

Upon the trial before a jury, there was testimony tending to show: That on April 7, 1928, after dark, the defendant, Linville, together with McBride, both prohibition agents, stopped an automobile at the outskirts of Bend as it approached the highway on a side road leading from a roadhouse where it was suspected and reported that intoxicating liquors were dispensed, and the proprietor had at one time been convicted of violating the prohibition law. The defendant, Linville, accosted the occupants of the car, John W. Dennis and one Kirby, who was driving the car, and Linville said, "Officers--men, what have you in the car?" The prosecuting witness, Dennis, answered, "Rubber tires, liquor and wild women." That Linville stated that he was going to search the car and requested Dennis to get out of the car in order that he might do so. That Dennis demurred and in order to search the car Linville took hold of Dennis, and that Dennis struck at him attempting to assault him, whereupon he struck at Dennis with the hand in which he held the flash-light and a fight occurred.

It was claimed by the defendant that the initial search and resulting fight occurred under a claim of probable cause that the car contained intoxicating liquor. An exception was reserved for the reason that while the witness for the state, J. W. Dennis, was upon the stand, he was asked to describe the flash-light, and, among other questions, he was asked what kind of a flash-light it was. He answered: "I would say it was a flash-light such as speed cops and those carry; a three or four cell flash-light. Q. About how long? A. Probably a foot in length, and I would say that the flash light would weigh two or three pounds."

Objections were interposed to this testimony for the reason that it was an estimate or opinion of the witness as to the size and weight of the flash-light, and that the witness was not qualified to answer. The flash-light was introduced in evidence before the jury. The testimony of the witness was competent as a general description of the instrument alleged to have been used as a weapon. Hubbard v. N.Y. Ry., 183 A.D. 470, 170 N.Y.S. 889. There was no error in admitting such testimony.

Dr. J. F. Hosch, who attended Dennis after the fight, when a witness for the state was asked the following question: "I will ask you, then, if in your opinion, if a man was struck with a flash light weighing two pounds, more or less, but approximately two pounds, and a foot long, and during the attack the flash light was broken and the glass had come out of it, and he was being struck about the head and the face and right under the eye, where these wounds which you have described on Mr. Dennis were, whether in such an attack with such an instrument, it could not have possibly resulted in great bodily injury, or even death?"

The defendant interposed an objection to the hypothetical question for the reason it was not based upon all of the testimony with reference to the flash-light and injuries. The objection was overruled and an exception reserved. The witness answered to the effect that the instrument could be of such a nature as could endanger the sight of an eye or, remotely, could possibly endanger life.

The question propounded to the doctor was proper. It is a matter for expert testimony as to whether a certain instrument used in a certain way could have caused great bodily injury. The witness was possessed of knowledge not common to the jury. There was no error in overruling the objection. A hypothetical question on principle need not include any particular number of facts, and need not include all the facts which the questioner alleges in his case. The form of the hypothetical question and the facts to be embraced therein are matters resting largely in the discretion of the trial court.

22 C.J. § 796, p. 708, also section 802, pp. 712, 713; 1 Wigmore on Ev. § 682, subd. (d).

At the close of the testimony the defendant moved for an order of the court directing the jury to render a verdict of not guilty, and also at the appropriate time objected to the introduction of any evidence, for the reason that the indictment did not charge a crime. A motion for a directed verdict assigns the same reason, and also for the reason that the evidence did not support the indictment.

An intentional, unlawful offer of corporal injury to another by force, or force unlawfully directed toward the person of another, under such circumstances as create a well-founded fear of imminent peril, coupled with the apparent present ability to effectuate the attempt, if not prevented, constitutes an assault. 5 C.J. p. 615, § 1. Under the indictment, if the evidence warranted, the defendant could have been found guilty of an assault with a dangerous weapon, or a simple assault.

The testimony was conflicting. One construction of the testimony of the prosecuting witness, Dennis, would be to the effect that the defendant struck him with a flash-light, without necessity or provocation. According to his testimony the defendant could have been found guilty of some offense under the indictment. There was no error in overruling the motion for a directed verdict.

The defendant, Linville, upon the trial claimed, as a defense that he was justified in his acts as an officer in searching the...