State v. Murphy, 56-69

• Decision Date: 03 February 1970
• Docket Number: No. 56-69,56-69
• Citation: 128 Vt. 288,262 A.2d 456
• Court: Vermont Supreme Court
• Parties: STATE of Vermont v. James MURPHY, IV.

Page 456

262 A.2d 456

128 Vt. 288

STATE of Vermont v. James MURPHY, IV.

No. 56-69.

Supreme Court of Vermont.

Feb. 3, 1970.

Frank G. Mahady, State's Atty., for the State.

Harry A. Black, White River Junction, for defendant.

Before HOLDEN, C. J., and SHANGRAW, BARNEY, SMITH and KEYSER, JJ.

SHANGRAW, Justice.

This is a prosecution for breach of peace, a violation of 13 V.S.A. section 1021. Respondent was brought to trial before the Vermont District Court, Unit #VI, Windsor District, and by a jury's verdict found guilty. Judgment was entered on the verdict, sentence imposed, and execution stayed pending respondent's appeal to this Court for review.

Section 1021, supra, provides:

A person who disturbs or breaks the public peace:

(1) By destruction of property, assaulting, beating or striking another person shall be imprisoned * * * or fined * * *

(2) By any disorderly act or language, which does not amount to assault or battery, or destruction of property, shall be imprisoned * * * or fined * * * The information alleged that in Windsor in the County of Windsor, on September 13, 1968, the respondent 'did then and there disturb and break the public peace, and then and there assaulted, and beat and struck another person, to wit, Mr. Edward Leonard, an officer of the law for the Town of Windsor, in violation of 13 V.S.A. Sec. 1021 * * *'

Viewing the evidence in the light most favorable to the State, as we must do, the jury could reasonably have found the following facts.

About two o'clock in the morning of September 13, 1968, Robert Biron, of Claremont, N.H., arrived at the Windsor Police Station and complained to the dispatcher in charge that a man was in his car and would not remove himself from the automobile.

The dispatcher, by radio, notified Edward Leonard, a police officer of the Town of Windsor who was then on duty, of the complaint. Officer Leonard approached the Biron car and observed that Harry Gilbert was occupying the front seat of the automobile. He immediately alighted upon the arrival of this officer. Respondent was seated in the rear seat of the Biron car, which was parked near the Windsor Fire Station.

Mr. Leonard asked the respondent to get out of the automobile three times. He refused, became argumentative, used obscene language, and threatened to kill Leonard.

At this point officer Leonard advised the respondent that it would be necessary to arrest him if he did not get out of the automobile, which he refused to do.

Clifford Robinson, of the local police force, then arrived on the scene and was requsted by Leonard to get two night sticks and a can of mace from the police cruiser. Upon Robinson's return to the Biron car, Leonard then sprayed the mace, a chemical irritant similar to tear gas, into the rear of the Biron vehicle. The respondent then made a hasty retreat from the automobile by jumping over the back of the front seat and got out of the car through its right hand front door.

At the time Mr. Leonard stood on the left hand side of the car. At about this time respondent stated 'I'll kill you bastards.' Respondent was then told that he was under arrest for disorderly conduct.

Officer Leonard testified to the following events, which followed the respondent's exit from the automobile.

Q. What did you do at that point?

A. I started to go around the rear of the car and the respondent also moved toward the rear of the car.

Q. What did you do at that time?

A. I told him he would have to come into the station that I was placing him under arrest for disorderly conduct.

Q. How did he reply to this?

A. He said I'll kill you bastards.

Q. Did he do anything?

A. Yes he put his hands up similar to a prize fighter and while making the threat I'll kill you he lunged at me and threw a punch, his right hand struck me in the left wrist.

Q. What happened after he threw this punch?

A. He continued following through with the punch, rammed into me and knocked me down to the ground.

Q. What did he do then?

A. In goind down I thumped the back of my head on the rear bumper of the car. He ended up on top of me his right forearm across my throat alternately pressing down and choking me between his forearm and the pavement and tried to reach the night stick I held in my right hand.

The foregoing facts as testified to by Leonard, and supported by Robinson's testimony, are not disputed by the respondent. Officer Robinson and Mr. Gilbert removed the respondent from Leonard. He later broke away from them and ran away.

Under the provisions of section 1021, subsection (1) breach of peace includes 'assaulting, beating or striking another person' commonly referred to as assault and battery. The complaint charges the respondent with assault. It also charges a battery, it that it alleges the respondent beat and struck Officer Leonard.

Assault and battery are not synonymous terms. It has become customary in jurisprudence to refer to the term 'assault and battery' as if it were a legal unit, or a single concept. 6 Am.Jur.2d, Assault and Battery, section 7.

Generally speaking an assault is a demonstration of an unlawful intent by one person to inflict immediate injury on the person of another then present. Although physical contact is not an essential element, violence, threatened or offered, is. 6 Am.Jur.2d, Assault and Battery, section 3, p. 9.

Actual offer to use force to injure another is 'assault' and the use of it is 'battery'. Hayes v. Lancaster, 200 N.C. 293, 156 S.E. 530, 531. People v. McCaffrey, 118 Ca.App.2d 611, 258 P.2d 557, 562.

In considering the present case, the evidence supports a violation of the statute in at least two particulars. It first reveals a threat or assault by the respondent while he was both in and out of the automobile to kill Officer Leonard, and secondly, the batter which followed as a result of respondent's physical violence by striking Leonard after the respondent had alighted from the Biron automobile.

Respondent first urges error by the trial court in charging that no intent was required to constitute the crime alleged in the complaint. Such portions of the charge to which respondent took exception have not been set forth in his brief. However, allowing him the benefit of any doubt, counsel may well have had in mind the following comments made by the court in its charge.

'Committing acts or making statements likely to produce violence and disturbances of good order though no such eventuality is intended may constitute a breach of peace. * * * It is not essential that the defendant should have designed to inflict the precise injury * * * so to; the personal injury sustained through the reckless conduct of another may constitute an assault and battery although there was no actual intention to inflict the injury.'

The court further stated that 'An assault is an attempt or offer with force or violence to bo bodily harm to another, whether from malice or wantonness, under such circumstances as denote at the time an intention to do it coupled with a present ability to carry such intention into effect.' By further defining 'assault' the court continued by saying, 'An assault may go on further than threatening motions such as a clenched fist under circumstances that indicate actual intent to harm and with the then present ability to do it.' Again, the court charged that '* * * an assault may be, and usually is, committed by the actual and intentional application of physical force; * * *'

Considering the charge in its entirety, and not piecemeal, we are satisfied that the general tenor of the charge is consistent with the view that...