State v. Straight

• Decision Date: 10 December 1959
• Docket Number: No. 10041,10041
• Citation: 347 P.2d 482,136 Mont. 255
• Parties: STATE of Montana, Plaintiff and Respondent, v. Bernice L. STRAIGHT, Defendant and Appellant.
• Court: Montana Supreme Court

Page 482

347 P.2d 482

136 Mont. 255

STATE of Montana, Plaintiff and Respondent, v. Bernice L. STRAIGHT, Defendant and Appellant.

No. 10041.

Supreme Court of Montana.

Dec. 10, 1959.

Michael J. Whalen, Billings, for appellant.

Forrest H. Anderson, Atty. Gen., Louis Forsell, Asst. Atty. Gen., William J. Speare, County Atty., Billings, for respondent.

CASTLES, Justice.

This is an appeal from a judgment of conviction on a jury verdict for the crime of assault in the third degree. The defendant had been charged with assault in the second degree and the conviction of the lesser crime was found by the jury. Both the jury and the court fixed punishment for the maximum of third degree assault, six months in jail, and a fine of $500.

At the time the information was filed, the defendant was employed in Carbon County, Montana, as a rural school teacher, supporting himself, his wife and two minor children.

The defendant and his wife had been caring for the minor children of Beulah Straight in their home since the latter part of December 1958. This baby-sitting arrangement had been in existence a week and three days on January 4, 1959. Beulah Straight is a cousin of defendant by marriage, and the mother of three minor children, namely, Ellis, born August 18, 1956, Oscar, who was about one year old, and an older daughter whose name and age were not disclosed. Ellis, at the time of the alleged assault, was of the age of less than 29 months. Beulah Straight testified that she had given the defendant permission to spank her children.

Sometime between noon and three p. m. on January 4, 1959, the defendant came to the home of one, Mrs. Sjostrum, in Billings to pick up the oldest daughter of Beulah Straight who had been staying with Mrs. Sjostrum since the day before. The defendant apparently remained in Mrs. Sjostrum's home for some period of time. The temperature outside was twenty degrees below zero. Evidently Ellis Straight, the 29 month old baby, let Oscar, the year old baby, out of the automobile of the defendant in which they had been left. As the result thereof, the fingers on both hands of year old Oscar Straight were severely frozen.

Because of what must have been considered by the defendant as the bad deportment of 29 month old Ellis, the defendant spanked or beat Ellis with his belt. During this time the defendant and Mrs. Sjostrum sought medical advice as to what to do for Oscar's frozen hands and first aid was administered.

Later in the afternoon, the defendant left with the children. That evening about 9:30 p. m. he took the children with him in his car and picked up Beulah Straight, their mother, at her place of employment and then drove her and the children home, which was about a half-hour drive. The defendant stayed at Beulah Straight's home and visited for some time, and then left for Red Lodge. Their relationship had been cordial and friendly at that time.

The assault, which was charged by information filed on January 15, 1959, grew out of the spanking or beating of the 29 month old baby with a belt by the defendant on January 4. The State's case was founded upon the testimony of three witnesses, Ruth Sjostrum, in whose home the alleged assault took place; Beulah Straight, the mother of 29 month old Ellis; and Dr. George W. Nelson, the doctor who examined the baby the following day. The defendant presented no testimony whatsoever.

The evidence presented to the jury showed that the child had been beaten, his body was bruised and black and blue. The examining physician testified that he found bruises two inches long and one inch wide on the child's chest and lower abdomen; that his buttocks and legs were bruised, his penis scratched and swollen, and his scrotum scratched.

The testimony was quite clear that the defendant had inflicted these bruises with the belt on the afternoon of January 4, 1959, and that after beating or spanking the child, he stated 'We will let it cool off and give him more.' All of this testimony was uncontradicted.

As related before, defendant offered no testimony whatever. After the first witness was sworn, defendant objected to the introduction of any evidence on the ground that the information did not state a public offense. After both sides had rested, the objection was renewed by a motion to discharge the jury and release the defendant. During the course of the trial, on four different occasions, the defendant moved the court to direct a mistrial. All of these motions were denied. When the State rested its case, defendant moved the court to direct the jury to acquit and also to advise the jury to acquit, both of which motions were denied. The defendant's sole attempt to make a case was by attempting to show a failure of the State's case to support the crime charged, and to make some kind of a defense by cross-examination.

The defendant has specified as error some thirty-three specifications of error. The specifications generally may be divided into three categories: (1) The information; (2) The conduct of the trial, including ruling on evidence; and (3) The instructions.

Certain of the specifications of error set forth are not argued in defendant's brief nor were they argued in oral argument, and hence will be deemed waived.

The information charged that 'one Bernice L. Straight, late of the County of Yellowstone, State of Montana, on or about the 4th day of January, A.D. 1959, at the County of Yellowstone and State of Montana, committed the crime of Assault In The Second Degree, in that the said Bernice L. Straight, then and there being, then and there did, wilfully, wrongfully, unlawfully and feloniously assault a human being, to-wit: Ellis Straight, by wounding and inflicting grievous bodily harm upon the said Ellis Straight; contrary to the form, force and effect of the statute in such case made and provided, and against the peace and dignity of the State of Montana.'

The charge contained in the information is the wording of section 94-602, R.C.M.1947.

R.C.M.1947, section 94-605, so far as applicable to this case, provides:

'Use of force not unlawful. To use or attempt or offer to use force or violence upon or towards the person of another is not unlawful in the following cases: * * *

'4. When committed by a parent, or an authorized agent of any parent, or by a guardian, master, or teacher, in the exercise of a lawful authority to restrain or correct his child, ward, apprentice, or pupil, and the force or violence used is reasonable in manner and moderate in degree.'

The meaning of the words in the foregoing statute, 'reasonable in manner and moderate in degree' is the concern of this court on this appeal.

As to the information, defendant's specifications of error allege that the information was fatally defective in that it did not allege a specific intent. It is also urged that since the information did not allege the manner in which the assault was made, that the introduction of evidence of the use of the belt was not proper.

In State v. Broadbent, 19 Mont. 467, 471, 48 P. 775, 777, this court held an information sufficient under what is now R.C.M.1947, Sec. 94-602, where intent was not specifically alleged. The court there said: 'Under subdivision 3, Sec. 401, Pen.Code [1895], every person is guilty of an assault in the second degree who 'willfully or wrongfully wounds, or inflicts grievous bodily harm upon another, either with or without a weapon.' The specific intent to wound or inflict grievous bodily harm upon another by the assault is not an ingredient of the offense by the statute. The statutory offense consists in willfully or wrongfully wounding or inflicting grievous bodily harm upon another. It is true that a criminal intent must be alleged in some way. But must it, under this statute, be specifically alleged? It is alleged in the information that the defendant 'unlawfully, feloniously, willfully, and wrongfully did inflict grievous bodily harm' upon Plum. In Bishop's New Criminal Procedure (subdivision 3, Sec. 521, vol. 1), we find the rule thus stated: 'The evil intent, being an element in every crime, must always be in some way alleged. Direct words, varying with the case, are required where it is in a form special to the particular offense, or where it is an affirmative item in the charge; but where, in the nature of the individual case, it is a part of the acts alleged, it need not be separately stated. The joint intent and act need simply be so set down as, on the whole, to show a prima facie crime.'

'The same author (in section 523, vol. 1) says: Generally 'the rule is that, if the statute creating an offense is silent concerning the intent, nothing of the intent need appear in averment.' We think, therefore, that the information contains a sufficient allegation of intent in its general terms alleging the offense.

'Appellant contends that the instructions of the court were erroneous, because they did not contain a charge to the jury that they must find that the defendant committed the assault with the intent to inflict grievous bodily injury upon Plum. For the same reasons that we hold it unnecessary to allege such specific intent in the information, we think it was not error to refuse to charge the jury that they should find the assault to have been committed with such specific intent. We think it was sufficient to charge the criminal intent generally. This the court did.'

The defendant urges that this case is not authority for the case here, because the spanking in this case, as an initial act, was lawful; and the court, in the Broadbent case, relied upon Bishop's New Criminal Procedure which said:

'The evil intent, being an element in every crime, must always be in some way alleged. Direct words, varying with the case, are required where it is in a form special to the particular offense, or where it is an affirmative item in the charge; but where, in the nature of the individual case, it is a part of the acts alleged,...