State v. Upham

• Decision Date: 11 October 1932
• Docket Number: 5861
• Citation: 52 Idaho 340,14 P.2d 1101
• Parties: STATE, Respondent, v. ROBERT UPHAM, Appellant
• Court: Idaho Supreme Court

14 P.2d 1101

52 Idaho 340

STATE, Respondent, v. ROBERT UPHAM, Appellant

No. 5861

Supreme Court of Idaho

October 11, 1932

CRIMINAL LAW - RECORD ON APPEAL, CONTENTS OF-ASSAULT AND BATTERY-INFORMATION-DUPLICITY-INSTRUCTIONS.

1. On appeal from final judgment of conviction, copies of all requested instructions showing those given and those refused with court's indorsement thereon, and those given on court's own motion, are essential part of record required to be in clerk's transcript (C. S., secs. 9040, 9077; Laws 1927, chap. 135, sec. 2).

2. Repealing clause of 1927 statute, relating to requirements of reporter's transcript on appeal in criminal cases generally, did not repeal provisions of statutes relating to clerk's transcript and specifying what constitutes record on appeal from convictions (C. S., secs. 9040, 9077; Laws 1927, chap. 135, sec. 2).

3. On appeal from conviction, instructions given by court embodied in clerk's transcript held properly before court without being included in reporter's transcript (C. S., secs 9040, 9077; Laws 1927, chap. 135, sec. 2).

4. On appeal from conviction, all papers called for by attorney general's praecipe, except unused forms of verdict, held properly filed in clerk's office and constituted part of records, though not specifically required to be included in judgment-roll (C. S., secs. 9040, 9077; Laws 1927, chap. 24).

5. Forms of verdict submitted to jury are not properly part of record on appeal from conviction (C. S., secs. 9002, 9040 9077).

6. Including original verdict in transcript on appeal from conviction held harmless, though it be shown also in minutes (C. S., secs. 9002, 9040, 9077).

7. On appeal from conviction, motion in arrest of judgment is properly part of record (C. S., secs. 9040, 9077).

8. Where indictment charges assault only, defendant cannot be convicted of battery.

9. Information charging defendant assaulted prosecutor with deadly weapon by striking him with club held to charge battery also, justifying conviction of battery.

10. Question of duplicity in information cannot be raised by motion in arrest of judgment, absent demurrer or motion to elect on that ground.

11. Erroneous instruction that battery was included in charge of assault held not prejudicial, where information alleged battery and defendant waived right to object by failing to demur or require election.

12. Judgment will not be reversed for erroneous instruction that was not prejudicial.

13. District court had jurisdiction of prosecution for battery although battery, being misdemeanor, was triable in justice court in the first instance.

APPEAL from the District Court of the Ninth Judicial District, for Fremont County. Hon. C. J. Taylor, Judge.

Motion to strike portions of transcript on appeal. Denied. Appeal from judgment on conviction of battery. Affirmed.

Affirmed.

B. H. Miller, for Appellant.

Our contention is that one cannot be legally convicted of battery on a charge of assault, regardless of the degree.

In the case of State v. Crawford, 32 Idaho 165, 179 P. 511, in the concurring opinion of Justice Budge, this court has held: "The cases hold that every battery includes an assault, but assault does not include a battery, and that is true, regardless of the degree of the offense."

The above case is identical with the case at bar in that the defendant therein, like the appellant herein, was charged with assault with a deadly weapon.

In the case of People v. Helbing, 61 Cal. 620, cited in State v. Crawford, supra, it is said: "The offense of battery is the unlawful use of force or violence upon the person of another; it is also, like an assault, a misdemeanor, because it is punishable by fine or imprisonment in the county jail, or by both fine and imprisonment ( §§ 242, 243); it is therefore a greater offense than assault, and, being the greater, it includes the less. But the less does not include the greater. Battery, therefore, includes assault, but assault does not include battery; nor is the latter included within nor an ingredient of the offense of assault with a deadly weapon with a felonious intent. Upon trial for the latter offense a defendant could not equally be convicted of battery."

Fred J. Babcock, Attorney General, and Z. Reed Millar, Assistant Attorney General, for Respondent.

The legislature has limited an appellant to the procedure under I. C. A., sec. 7-509 (C. S., sec. 6886), in order to bring up instructions, given or refused in a criminal case, for review by the supreme court. The court reporter must include them in a transcript prepared by him which must likewise be settled by the trial judge. (State v. Trathen, 51 Idaho 435, 6 P.2d 150.)

Matters stated in a motion in arrest of judgment, which are not grounds for demurrer to the information, cannot be considered on motion in arrest of judgment. (State v. McClurg, 50 Idaho 762, 300 P. 898; State v. Frank, 51 Idaho 21, 1 P.2d 181; State v. Knutson, 47 Idaho 281, 274 P. 108.)

The question of duplicity in an information cannot be raised on motion in arrest of judgment in absence of demurrer on that ground. (State v. Knutson, supra; State v. Severns, 47 Idaho 246, 273 P. 940.)

On a charge of assault with a deadly weapon, there may be a conviction of a simple assault, or of battery where the indictment charges a battery. (State v. Crawford, 32 Idaho 165, 179 P. 511; 31 C. J. 862; State v. Klein, 19 Wash. 368, 53 P. 364; People v. Ellsworth, 90 Mich. 442, 51 N.W. 531; Mulloy v. State, 58 Neb. 204, 78 N.W. 525; State v. Surry, 23 Wash. 655, 63 P. 557.)

LEEPER, J. Lee, C. J., and Budge, Givens and Varian, JJ., concur.

OPINION

LEEPER, J.

Appellant, convicted of the crime of battery, appeals from the judgment. The instructions given by the court (there is no mention of any requested instructions in the transcript) and other papers hereinafter mentioned were embodied in the clerk's transcript. The attorney general contends that the instructions are not properly before us and should be embodied in the reporter's transcript and not in the clerk's transcript. He has moved to strike the instructions from the transcript on the ground that the latter is not prepared, certified and settled as required by the provisions of C. S., sec. 9077; Sess. Laws 1927, chap. 135, p. 178; and C. S., sec. 6886, as amended Sess. Laws 1925, chap. 111, p. 158; Sess. Laws 1927, chap. 33, p. 42; and cites the recently decided case of State v. Trathen, 51 Idaho 435, 6 P.2d 150, to sustain his contentions. In that case the state appealed from a judgment of acquittal in a criminal action. We held that "the law neither authorizes instructions to be filed, nor makes them part of the record in the case" where there is no judgment of conviction and the appeal is by the state from a judgment of acquittal in a criminal action. On the other hand the opinion refers to the requirement of C. S., sec. 9040, to the end that written charges asked and refused, the court's indorsement thereon, copies of all requested instructions showing those given and those refused, with the court's indorsement thereon, and those given on the court's own motion, when a judgment of conviction is rendered, must, with other papers, be annexed together and filed "without unnecessary delay," and constitute the record in the action. Such record, where the appeal is from a final judgment of conviction, is made an essential part of the record on appeal, required to be included in the clerk's transcript by the provisions of C. S., sec. 9077. The code being silent as to what constitutes the record in the district court where a judgment of acquittal is entered in a criminal action, this court held in State v. Trathen, supra, that in such case, appellant must follow the procedure prescribed by C. S., sec. 6886, as amended, supra, requiring instructions given or refused to appear in the reporter's transcript in civil cases, the provisions of which are made to apply to criminal actions by Sess. Laws 1927, chap. 135, p. 178. Therefore, since the instructions requested, given and refused constitute part of the record, where a judgment of conviction is entered in a criminal case, they must necessarily be embodied in the clerk's transcript on appeal from such judgment, as required by the provisions of C. S., sec. 9077. Nor does Sess. Laws 1927, chap. 135, p. 178, providing as follows: "Sec. 2. Section 9013 of the Idaho Compiled Statutes and all other acts and parts of acts in conflict with the provisions of this act are hereby repealed; provided that in appeals heretofore perfected the transcript may be obtained and prepared in accordance with this Act or with law in force at the time of the perfection of such appeals."--operate to repeal the provisions of C. S., sec. 9040, making said instructions part of the record on rendition of judgment of conviction. Such provisions relate to what constitutes the record in the district court on judgment of conviction, while the repealing clause, Sess. Laws 1927, chap. 135, p. 178, sec. 2, refers to the requirements of the reporter's transcript in criminal cases generally--appeals both from judgments of conviction and judgments of acquittal. True, said Sess. Laws 1927, chap. 135, p. 178, requires said reporter's transcript to include instructions "given or refused" during the trial of a criminal action the same as in a civil action, and C. S., sec. 9077, also requires them to appear in the clerk's transcript, as part of the record made up as directed by C. S., sec. 9040, on appeal from a final judgment of conviction, but there is no "conflict" between the several provisions--merely a duplication--and the repealing clause above set forth does not affect the requirements of C. S., sec. 9077, relating to the clerk's transcript or...