State v. Singh

• Decision Date: 31 December 1921
• Citation: 203 P. 1064,34 Idaho 742
• Parties: STATE, Respondent, v. PHUMN SINGH, Appellant
• Court: Idaho Supreme Court

203 P. 1064

34 Idaho 742

STATE, Respondent, v. PHUMN SINGH, Appellant

Supreme Court of Idaho

December 31, 1921

CRIMINAL LAW-INFORMATION-CERTAINTY-INCLUDED OFFENSE.

1. An information charging an assault with attempt to commit murder does not necessarily include an assault with a deadly weapon or instrument, or an assault by means and force likely to produce great bodily injury.

2. An information charging an assault with intent to commit murder by then and there striking, hitting and beating a person with a heavy stick or club does not charge an assault with means and force likely to produce great bodily injury.

3. An information to be sufficient must state the facts clearly and distinctly. It is not sufficient that the facts appear by inference or argument.

4. A defendant in a criminal action cannot be convicted of a crime not necessarily included in the information.

APPEAL from the District Court of the Seventh Judicial District, for Washington County. Hon. B. S. Varian, Judge.

Information charging assault with intent to commit murder. Verdict of assault by means and force likely to produce great bodily injury. Reversed.

Judgment reversed, and a new trial ordered. Petition for rehearing denied.

Lot L Feltham, for Appellant.

The defendant was tried upon one charge and convicted and sentenced upon another charge not set forth in the information. The information charged an assault with intent to kill and murder, under sec. 8230, C. S. The defendant was found guilty of an assault by means and force likely to produce great bodily harm, under sec. 8252, C. S. These were two distinct offenses. There were no allegations in the information charging an assault by any means or force likely to do great bodily injury, as required by sec. 8252, C. S. The information did not charge an assault with a deadly weapon. The heavy stick or club was not described either as deadly or of weight sufficient to indicate a deadly weapon. (Ex parte Ah Cha, 40 Cal. 426; Ex parte Cox, 3 Idaho 530, 95 Am. St. 29, 32 P. 197; People v. Jacobs, 29 Cal 579; 3 Cyc. 1040, 1054.)

A party can only be convicted of a lesser offense than the one charged where the lesser is specifically charged as constituting a part of the higher, or by an added count where the lower is necessarily included in the higher. (Ex parte McLeod, 23 Idaho 257, 128 P. 1106, 43 L. R. A., N. S., 813; Territory v. Dooley, 4 Mont. 295, 1 P. 747; Territory v. West, 4 Ariz. 212, 36 P. 207; State v. Crawford, 32 Idaho 165, 179 P. 511; 1 Wharton, Crim, Proc., 10th ed., sec. 299, p. 342; 3 Wharton, Crim. Proc., 10th ed., sec. 1675, p. 2106; Reynolds v. People, 83 Ill. 479, 25 Am. Rep. 410; Barber v. State, 39 Ohio. St. 660.)

Roy L. Black, Attorney General, and Jas. L. Boone, Assistant, for Respondent.

The lesser crime of assault by force or means likely to produce great bodily harm is included within the greater crime of assault with intent to commit murder. (Sec. 8997, C. S.; sec. 1159, Kerr's Penal Code; People v. English, 30 Cal. 214; Ex parte Donahue, 65 Cal. 474, 4 P. 449; People v. Pape, 66 Cal. 366, 5 P. 621; People v. Bentley, 75 Cal. 407, 17 P. 436; People v. Gordon, 99 Cal. 227, 33 P. 901; Ex parte Cox, 3 Idaho 530, 95 Am. St. 29, 32 P. 197; Matter of McLeod, 23 Idaho 257, 128 P. 1106, 43 L. R. A., N. S., 813; Territory v. West, 4 Ariz. 212, 36 P. 207.)

The crime of assault by force and means likely to produce great bodily harm is sufficiently stated in the information. (State v. Crawford, 32 Idaho 165, 179 P. 511; Matter of McLeod, supra; Territory v. West, supra.)

If the information did not state any offense or did not state the offense of which the appellant was convicted, then it was the duty of the appellant to take advantage of the defect by a motion in arrest of judgment, or under a plea of not guilty, and, having failed to do either, he waived any right to raise that question for the first time in this court. (State v. Hinckley, 4 Idaho 490, 42 P. 510.)

RICE, C. J. Dunn and Lee, JJ., concur. McCarthy, J., dissents. Budge, J., did not sit at the hearing, and took no part in the opinion.

OPINION

RICE, C. J.

The information in this case charged that "in the County of Washington, State of Idaho, on or about the 23rd day of August, 1920, said defendant, Phumn Singh, then and there being did assault with intent to kill and murder one Parker Gundo, he the said defendant having the present ability so to do, by then and there striking, hitting and beating said Parker Gundo with a heavy stick or club, all of which said defendant did knowingly, unlawfully, wilfully, feloniously and with malice do," etc.

In Instruction No. 3, the court told the jury that they might return a verdict of guilty of assault by means and force likely to produce great bodily injury, if in its judgment the evidence justified such a verdict. To that instruction appellant excepted. The jury returned a verdict of guilty of assault by means and force likely to produce great bodily harm.

C. S. sec. 8997, 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."

Appellant contends that the offense of which he was found guilty is not included in the information.

In the case of In re McLeod, 23 Idaho 257, 128 P. 1106, 43 L. R. A., N. S., 813, it was held that the crime of assault with a deadly weapon or instrument is not necessarily included in the statutory definition of murder. In the body of the opinion the court said:

"So in the present case, the information might have charged the crime of murder in the language of the statute, or the information might have charged murder by an assault upon the person of another with a deadly weapon or instrument. In the first charge the defendant could be found guilty only of murder in one of the degrees specified in the statute--murder in the first degree, murder in the second degree, or manslaughter, if the evidence warranted such a finding. In the...