State v. Postell, 1
| Citation | 20 Ariz.App. 119,510 P.2d 749 |
| Decision Date | 12 June 1973 |
| Docket Number | No. 1,CA-CR,1 |
| Parties | STATE of Arizona, Appellee, v. John Edward POSTELL, Appellant. 496. |
| Court | Arizona Court of Appeals |
Gary K. Nelson, Atty. Gen., by William J. Schafer, III, Asst. Atty. Gen., Phoenix, for appellee.
Ross P. Lee, Public Defender, by Ruby Gerber, Sp. Deputy Public Defender, Phoenix, for appellant.
This is an appeal by defendant John Edward Postell from a jury conviction of the crime of assault with a deadly weapon, a felony, and from the judgment and sentence of four to five years imposed thereon.
Defendant was originally charged with the crime of assault with intent to commit murder under A.R.S. § 13--248, as amended 1967. The information alleged that he committed the offense while armed with a gun or deadly weapon. During trial the court instructed the jury on the lesser offense of assault with a deadly weapon. The jury returned a verdict of guilty to said offense. We are asked to pass upon the following questions:
1) Whether it was proper for the trial court to have instructed the jury on the charge of assault with a deadly weapon as being a lesser included offense under the charge of assault with intent to commit murder; and 2) whether the trial court was required to give an instruction on accidental shooting absent a request by defendant to do so.
The essentially uncontroverted facts, as they relate to this appeal, are as follows. On June 5, 1971, at approximately 2:00 a.m., the defendant shot the victim, George Thomas, in the back while the latter was walking away from Tucker's Place, a rooming house on Main Street in El Mirage, Arizona. The shooting wound was not fatal, and the victim was treated in St. Joseph's Hospital in Phoenix. The incident which provoked the shooting stemmed from defendant's earlier discovery of his 'common-law wife' in bed with the victim.
The major factual issue at trial was whether the shooting was accidental or intentional. Accident or misfortune can, of course, be a bar to criminal conviction. A.R.S. § 13--134, subsec. 3.
Defendant testified in his own behalf that immediately prior to the time the victim was shot, he discovered his 'commonlaw wife' and the victim in the compromising situation, had become annoyed, and raised a borrowed pistol with which he claimed he was unfamiliar, waving it in the air merely to warn the victim. Defendant claimed that the gun accidentally discharged, thus injuring the victim. This was essentially the only evidence offered by defendant as to his theory concerning the shooting incident.
Contrary testimony was presented, however, to the effect that immediately prior to the actual shooting defendant pointed the gun at the victim and the victim's eyewitness companion, stating to the victim, 'I am going to kill you', and stating to the companion, 'You stay back unless you want some too.' Immediately after the shooting, to which the companion testified that he saw the blaze from the gun in defendant's hand, defendant allegedly approached the victim, again pointed the gun at the victim, and said, 'I guess that will teach you a lesson', and later went on to say, 'I'll shoot you again.'
At the conclusion of trial the court instructed the jury regarding the lesser offense of assault with a deadly weapon under A.R.S. § 13--249, but did not give an instruction regarding accidental shooting. The defendant did not specifically request an instruction on accidental shooting. No objections were made to the instructions given by the trial court.
A verdict may be rendered for an offense different from the offense charged only if it is included in the offense charged. State v. Sutton, 104 Ariz. 317, 452 P.2d 110 (1969); State v. Parsons, 70 Ariz. 399, 222 P.2d 637 (1950).
Defendant argues that the court erred in charging the jury that they could find the defendant guilty of assault with a deadly weapon because it is not a lesser included offense. He reasons that because there are means with which to murder that do not include the use of a deadly weapon, all the elements of the lesser offense are not included in the greater offense, therefore it is not a logical necessity that assault with a deadly weapon be a lesser included offense within the crime of assault with intent to commit murder.
Although the Arizona Supreme Court has perhaps never resolved the issue as presented in this form, that tribunal has held on at least three occasions that within the crime of assault with intent to commit murder, assault with a deadly weapon is indeed a lesser included offense. State v. Felix, 107 Ariz. 211, 484 P.2d 631 (1971); State v. Thompson, 68 Ariz. 386, 206 P.2d 1037 (1949); Hann v. State, 30 Ariz. 366, 247 P. 129 (1926). In State v. Felix, supra , the Supreme Court unequivocally stated:
'The first contention requires little attention because assault with a deadly weapon is a lesser included offense in the crime of assault with intent to commit murder . . .' 107 Ariz. at 212, 484 P.2d at 632.
It is well settled that a trial court may instruct on a lesser included offense where there is evidence presented upon which the jury could convict on the lesser offense even though the evidence might be insufficient to convict on the greater offense. State v. Ramos, 108 Ariz. 36, 492 P.2d 697 (1972); State v. Brady, 105 Ariz. 190, 461 P.2d 488 (1969); State v. Sutton, supra.
The record clearly establishes that the requisite elements of the offense of assault with a deadly weapon had been met. We find no error in the giving of the instruction.
Defendant contends that although a request for a specific instruction on accidental shooting was never made, the court had the affirmative obligation to instruct the jury on the subject, Sua sponte. In 23A C.J.S. Criminal Law § 1325(4), at p. 839, is the following general proposition:
'. . . (I)t is not error to fail to give an unrequested instruction on the law of accident as a defense where the instructions as a whole fairly cover the issues of fact before the jury for consideration or there is no evidence to support a charge on the law of accident, even though the charge is authorized by the statement of accused; but it is otherwise where accident is one of the main defenses and is involved by the evidence.'
First, we must ascertain if the court has instructed on the general principles of law pertaining to the essential issues of the case....
To continue reading
Request your trial
-
State v. Cameron
...necessary" and, further, that self-defense remains justified as long as "the apparent danger continues." Cf. State v. Postell, 20 Ariz. App. 119, 122, 510 P.2d 749, 752 (1973) (finding no error when court could have "expanded on its instructions" but, "as a whole[, they] fairly covered the ......
-
State v. Roberts
...the end of the trial to charge a different crime or instructed on a crime which was not a lesser included offense. State v. Postell, 20 Ariz.App. 119, 510 P.2d 749 (1973); Peterson v. Jacobson, 2 Ariz.App. 593, 411 P.2d 31 (1966). Such actions may very well violate a defendant's fundamental......
-
State v. Evans
...a reasonable doubt is only required when requested or if the general principles are not otherwise covered. Cf. State v. Postell, 20 Ariz.App. 119, 510 P.2d 749 (1973) (defense of accidental shooting). To hold otherwise would defeat the purpose of rule 21.3(c) which was designed to prevent t......
-
State v. Figueroa
... 1 The State of Arizona, Appellee, v. Javier Efrain Figueroa, Appellant. No. 2 CA-CR 2022-0046Court of Appeals of Arizona, Second DivisionJanuary 27, ... have acquitted him of attempted second-degree murder ... regardless of the instruction. See State v. Postell, ... 20 Ariz.App. 119, 122 (1973) ("If the shooting had been ... accidental, the element of intent would have had to be ... ...