State v. Missenberger
| Decision Date | 30 October 1963 |
| Docket Number | No. 9328,9328 |
| Citation | 86 Idaho 321,386 P.2d 559 |
| Parties | STATE of Idaho, Plaintiff-Respondent, v. Frank MISSENBERGER, Defendant-Appellant. |
| Court | Idaho Supreme Court |
Rulon R. Price, Idaho Falls, for appellant.
Allan G. Shepard, Atty. Gen., Thomas G. Nelson and R. La Var Marsh, Asst. Attys. Gen., Boise, Jack G. Voshell, Pros. Atty., Bonneville County, Idaho Falls, for respondent.
Appellant was charged with the crime of assault with intent to commit murder (I.C. § 18-4015). He was tried and the jury returned a verdict finding appellant guilty of assault with a deadly weapon (I.C. § 18-906). Judgment was entered upon the verdict and this appeal is from said judgment.
Under appellant's assignment of error it is contended that 'The verdict and judgment finding defendant guilty of assault with a deadly weapon is void because this crime is not an included offense in the crime of assault with intent to commit murder.'
The only issue presented by this appeal is whether the offense of 'assault with a deadly weapon' is an included offense under the information here involved.
The information filed by the prosecuting attorney of Bonneville County, Idaho, charged appellant with the crime of assault with intent to commit murder. The pertinent part of which information is as follows:
'The said Frank Missenberger on or about the 1st day of January, 1963, at the County of Bonneville and State of Idaho, and prior to the filing of this information,
'The said defendant then and there being did then and there assault the person of one Roy Mack with a loaded 32 calibre automatic mauser pistol with the intent then and there had to commit a murder by taking the life of the said Roy Mack.
'All of which is contrary to the form, force and effect of the statute in such cases made and provided and against the peace and dignity of the State of Idaho.'
I.C. § 19-2312, authorizing a conviction of included offenses provides:
'The jury may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged in the indictment, or of an attempt to commit the offense.'
In State v. Anderson, 82 Idaho 293, 352 P.2d 972, this court had under consideration said statute authorizing conviction of included offenses and precisely construed it as follows:
'* * * pursuant to I.C. § 19-2312, any offense, the commission of which is necessarily included in that charged in the indictment or information, is an included offense; * * *.'
In People v. Greer, 30 Cal.2d 589, 184 P.2d 512, the supreme court of California had under consideration a statute almost identical to I.C. § 19-2312 and stated that 'The test in this state of a necessarily included offense is simply that where an offense cannot be committed without necessarily committing another offense, the latter is a necessarily included offense.'
An assault is defined as 'an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another' (I.C. § 18-901). The offense of which appellant was found guilty is defined by I.C. § 18-906 as follows:
'Every person who commits an assault upon the person of another with a deadly weapon or instrument, or by any means or force likely to produce great bodily injury, is punishable by imprisonment in the state prison not exceeding two years, or by fine not exceeding $5000, or by both.'
The language contained in the information here involved could hardly more clearly charge the offense of 'assault with a deadly weapon.' It charges that appellant 'did then and there assault the person of one Roy Mack', and it specifically alleges the manner or means of the commission of the offense by the words 'with a loaded 32-calibre automatic mauser pistol.'
Although the specific issue here involved was not raised in the early cases of Ex parte Cox, 3 Idaho 530, 32 P. 197, and State v. Dixon, 7 Idaho 518, 63 P. 801, the defendant in each case was charged with assault with intent to murder, and convicted of assault with a deadly weapon likely to produce great bodily harm. In Ex parte Cox, supra, the court said:
'There is no question but what the court had jurisdiction of the prisoner, and had jurisdiction to try him for the crime of which he was convicted, and to sentence him for that crime; * * *.'
In State v. Owen, 73 Idaho 394, 253 P.2d 203, this court stated:
'Generally any offense which is included within the language of the information, or necessarily included in the charge, should be submitted to the jury.'
Among cases decided in other jurisdictions where the offense of 'assault with a deadly weapon' is considered as an included offense under an information or indictment charging the crime of assault with intent to commit murder by means of a deadly weapon are State v. Thompson, 68 Ariz. 386, 206 P.2d 1037; People v. McCurdy, 165 Cal.App.2d 592, 332 P.2d 350; Richardson v. State, 79 Okl.Cr. 42, 151 P.2d 73; Territory v. Alarid, 15 N.M. 165, 106 P. 371; Day v. People (Colo.), 381 P.2d 10.
Although the language of the charging part of an information is sufficient to charge included offenses, the statutory rule against charging more than one offense does not apply to included offenses. State v. Petty, 73 Idaho 136, 248 P.2d 218; State v. Wall, 73 Idaho 142, 248 P.2d 222.
Clearly the information alleges that the assault was made with a deadly weapon. A gun capable of being instantly fired is a 'deadly weapon' within the meaning of assault statutes. People v. Pittullo, 116 Cal.App.2d[86 Idaho 325] 373, 253 P.2d 705. In State v. Muguerza 46 Idaho 456, 268 P. 1, this court held that an information charging an assault with intent to commit murder by means of a certain deadly weapon, to-wit, a pistol, also charged the offense of 'assault with a deadly weapon' as an included offense and it was not necessary to allege that the pistol was loaded, such being a matter of proof only.
It is beyond question that the evidence is sufficient to justify the jury in finding that the appellant made an assault with a deadly weapon. The prosecuting witness, Roy Mack, testified that at the time of the offense he was staying at the home of his former mother-in-law and at about 11:30 at night he observed appellant going around to the back door of the house; that he (appellant) broke the lock off the storm door and forced the other door open; that appellant was in the kitchen by the time the witness met him. The following is an excerpt of the testimony of the prosecuting witness:
'Q Would you describe what happened at the time you met him?
Appellant contends and argues at length that under the law he cannot be found guilty of 'assault with a deadly weapon' under a charge of 'assault with intent to commit murder' because a different intent is involved in each offense; that in order for one offense to be included in another the peculiar intent involved in each crime must unite or coexist with the act. Appellant cites I.C. § 18-114, which provides:
'In every crime or public offense there must exist a union, or joint operation, of act and intent, or criminal negligence.'
In State v. Taylor, 59 Idaho 724, 87 P.2d 454, it is stated that the 'intent' as used in the foregoing quoted statute is construed to mean 'not an intent to commit a crime but is merely the intent to knowingly perform the interdicted act, or by criminal negligence the failure to perform the required act.' Further quoting with approval from State v. Henzell, 17 Idaho 725, 107 P. 67, wherein it was contended that intent is a necessary ingredient of every crime, the court said:
'This is true in the sense that the act must have been committed by the defendant voluntarily, and not under ...
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Bates v. State
...of the instant offense, did not indicate that any specific intent is an essential element of the crime. See State v. Missenberger, 86 Idaho 321, 326, 386 P.2d 559, 561 (1963). This argument is therefore without merit.3 The state did not question whether Bates' plea of guilty to both offense......
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State v. Polson
...charges both the crime of assault with intent to murder and the included offense of assault with a deadly weapon. State v. Missenberger, 86 Idaho 321, 386 P.2d 559 (1963); cf. I.C. § 19-2312. The fact that the information did not separately name the two offenses in no way prejudiced defenda......
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State v. Townsend
...possessor intended on that occasion to use it as a weapon. 3 See Huston, 121 Idaho at 740-41, 828 P.2d at 303-04; State v. Missenberger, 86 Idaho 321, 386 P.2d 559 (1963). Although this suggests that the decision as to what constitutes a deadly weapon is a fact-sensitive determination, it i......
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State v. Matthews, 17818
...character as a dangerous or deadly weapon may be thus established, at least for the purposes of that occasion. State v. Missenberger, 86 Idaho 321, 327, 386 P.2d 559, 562 (1963), quoting People v. Cloninger, 165 Cal.App.2d 86, 331 P.2d 441, 443 (1958); State v. Jones, supra; State v. Lenz, ......