State v. Patterson

• Decision Date: 09 March 1939
• Docket Number: 6643
• Citation: 88 P.2d 493,60 Idaho 67
• Parties: STATE, Respondent, v. CHARLES C. PATTERSON, Appellant
• Court: Idaho Supreme Court

88 P.2d 493

60 Idaho 67

STATE, Respondent, v. CHARLES C. PATTERSON, Appellant

No. 6643

Supreme Court of Idaho

March 9, 1939

CRIMINAL LAW-ASSAULT WITH DEADLY WEAPON-BATTERY-INDICTMENTS AND INFORMATIONS-DUPLICITY-STATUTORY CONSTRUCTION-INSTRUCTIONS TO JURIES-CRIMINAL NEGLIGENCE-REQUESTS FOR INSTRUCTIONS-NECESSITY FOR.

1. An information charging that defendant committed an assault with a deadly weapon upon person standing in doorway of house by firing shotgun toward house was sufficient to charge defendant with battery as well as with an assault with a deadly weapon. (I. C. A., secs. 17-1201, 17-1203, 17-1206.)

2. Although language of information was sufficient to charge both assault with a deadly weapon and battery, information was not duplicitous, where clear intent to accuse defendant only with assault with a deadly weapon appeared in information. (I. C. A., secs. 17-1203, 17-1206, 19-1313, 19-1603.)

3. In determining whether intent to commit violent injury was indispensable element of an assault with a deadly weapon statute defining assault as an unlawful attempt to commit violent injury was required to be read with statute requiring in every crime a union of act and intent, or criminal negligence. (I. C. A., secs. 17-114, 17-1201, 17-1206.)

4. An intent to commit violent injury on person of another is not an indispensable element of an assault with a deadly weapon but that offense may be committed where perpetrator is guilty of criminal negligence in use of weapon or means whereby it is committed. (I. C. A., secs. 17-114, 17-1201, 17-1206.)

5. It is jury's duty to consider charge in its entirety, but where one instruction, if followed, would require verdict for plaintiff, and another, if followed, would require verdict for defendant, instructions are so irreconcilable as to constitute prejudicial error.

6. In prosecution for an assault with a deadly weapon, instruction defining negligence without advising jury that negligence defined was not criminal negligence, or that measure of care therein referred to was not to be applied to case under consideration was improper. (I. C. A., sec. 17-1206.)

7. "Criminal negligence" which will make an act a crime is gross negligence, such negligence as amounts to a wanton, flagrant or reckless disregard of consequences or wilful indifference of safety or rights of others. (I. C. A sec. 17-114.)

8. In prosecution for assault with a deadly weapon, court's failure to instruct that plea of not guilty put in issue allegations, that burden rested on state to prove allegations, that a defendant is presumed to be innocent that jury must be satisfied of defendant's guilt beyond a reasonable doubt, or to define term "reasonable doubt" or the offense charged, constituted prejudicial error, regardless of whether such instructions were requested. (I. C. A., secs. 17-1206, 19-2032.)

9. An omission to charge on a particular point cannot be assigned as error where no instruction on point has been requested. (I. C. A., sec. 19-2032.)

The foregoing syllabus is by West Publishing Company, that following is by author of opinion.

I. An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury upon the person of another. If it is committed with a deadly weapon, or instrument, or by any means or force likely to produce great bodily injury, it is an assault with a deadly weapon and punishable as such.

II. The crime of battery is defined to be, "any wilful and unlawful use of force or violence upon the person of another."

III. Although the charging part of an information states facts sufficient to constitute the crimes of assault with a deadly weapon and battery, if it is stated in the information that the defendant is accused of assault with a deadly weapon, and no statement is made that he is accused of battery, this amounts to an election by the prosecuting attorney to proceed against him for assault with a deadly weapon alone, and the information is not subject to attack for duplicity.

IV. I. C. A., sec. 17-1201, which defines the crime of assault, must be read and construed with sec. 17-114, which provides: "In every crime or public offense there must exist a union, or joint operation, of act and intent, or criminal negligence."

V. An assault with a deadly weapon, or instrument, or by means or force likely to produce great bodily injury, may be committed if the perpetrator, though lacking a wilful intent to commit it, is guilty of criminal negligence in the use of the weapon, instrument, means, or force whereby it is committed.

VI. It is the duty of the jury to consider the charge given in its entirety, but if two instructions are given, one of which states a principle of law as being applicable to certain facts, and which, if followed, would require a verdict in favor of plaintiff, and the other states a principle of law as being applicable to the same facts, which, if followed, would require a verdict in favor of defendant, such instructions are so irreconcilable and confusing as to constitute prejudicial error.

VII. Criminal negligence is gross negligence, amounting to a wanton, flagrant, or reckless disregard of consequences, or to a wilful indifference to the safety or rights of others. It may result in either an omission to perform a duty, the commission of an act in violation of a duty, or in a combination of such omission and commission.

VIII. In charging a jury, the judge must state to it all matters of law necessary for its information. Either party may present any written charge and request that it be given. If the judge thinks it correct and pertinent it must be given; if not, it must be refused.

IX. Although omission to charge the jury on a particular point cannot be successfully urged as error where no request for an instruction on that point has been made, in criminal cases, in the district court, it is the duty of the judge to instruct the jury with respect to the general principles of law pertinent to the case, whether requested to do so or not, and failure in this particular is prejudicial error.

APPEAL from the District Court of the Seventh Judicial District, for Gem County. Hon. Thomas E. Buckner, Judge.

Appeal from judgment of conviction of assault with a deadly weapon and from an order denying a new trial. Reversed and a new trial ordered.

Reversed and remanded with instructions.

J. P. Reed, for Appellant.

Under a statute such as sec. 19-2032, I. C. A., by the great weight of authority, it is the duty of the trial judge to instruct the jury on the general principles of the law pertinent to the case, whether requested to do so or not; and it is reversible error not to do so. (People v. Peck, 43 Cal.App. 638, 185 P. 881; People v. Heddens, 12 Cal.App. (2d) 245, 55 P.2d 230; People v. Manzo, 64 P.2d 1112; People v. Scofield, 203 Cal. 703, 265 P. 914; People v. Bill, 140 Cal.App. 389, 35 P.2d 645.)

While it is not the duty of the trial court to instruct the jury without request upon collateral issues, or upon specific points developed by the evidence, it is nevertheless the duty of the trial court in criminal cases to give the jury instructions on general principles of law pertaining to the case on the court's own motion. (People v. Curran, 24 Cal.App. (2d) 673, 75 P.2d 1090; People v. Scofield, supra; People v. Murray, 72 Mich. 10, 40 N.W. 29; State v. Cody, 18 Ore. 506, 23 P. 891.)

Ordinary negligence falls short of the requisites of criminal negligence; and a jury should not be so instructed as to leave them to infer that mere negligence is criminal negligence. (State v. McMahan, 57 Idaho 240, 65 P.2d 156; Brimhall v. State, 31 Ariz. 522, 255 P. 165, 53 A. L. R. 231.)

The following authorities hold that, in order to commit an assault, there must be an actual intent to injure another person, since the word "attempt" implies an intentional effort. (State v. Yturaspe, 22 Idaho 360, at p. 378, 125 P. 802; State v. Selby, 73 Ore. 378, 144 P. 657, at p. 659; State v. Godfrey, 17 Ore. 300, 20 P. 625, 11 Am. St. 830; State v. Kelley, 41 Ore. 20, 68 P. 1.)

J. W. Taylor, Attorney General, and R. W. Beckwith, Assistant Attorney General, for Respondent.

An omission to charge on a particular point cannot be assigned as error where no instruction on the point has been requested by appellant. (State v. Roby, 43 Idaho 724, 254 P. 210; State v. Harness, 10 Idaho 18, 76 P. 788; State v. Jurko, 42 Idaho 319, 245 P. 685; State v. Smailes, 51 Idaho 321, 5 P.2d 540.)

An information, charging facts, showing criminal negligence, is sufficient without alleging that the assault with the deadly weapon was committed intentionally, as criminal negligence imputes the necessary intent. (State v. Bush, 50 Idaho 166, 295 P. 432, State v. Frank, 51 Idaho 21, 1 P.2d 181; State v. Griffith, 55 Idaho 60, 37 P.2d 402; State v. Upham, 52 Idaho 340, 14 P.2d 1101.)

MORGAN, J. Ailshie, C. J., and Budge, Givens and Holden, JJ., concur.

OPINION

MORGAN, J.

It is recited in the amended information that Charles C. Patterson is accused of the crime of assault with a deadly weapon. The charging part is as follows:

"That the said Charles C. Patterson, on or about the 26th day of December, 1937, in the County of Gem, State of Idaho, then and there being, did then and there, willfully, unlawfully and feloniously, commit an assault with a deadly weapon, (being a loaded 12 gauge pump shot gun), upon the person of another to wit: one Dorothy Hull, by then and there carelessly, negligently and wantonly and recklessly, firing said 12 gauge pump shot gun, at and toward the house of one Merle Hull, the said Charles C. Patterson well knowing that the said Merle Hull house was occupied and well knowing that said house was in range of said 12 gauge...