Territory of Arizona v. West

• Decision Date: 26 January 1894
• Docket Number: Criminal 80
• Citation: 36 P. 207,4 Ariz. 212
• Parties: TERRITORY OF ARIZONA, Plaintiff and Respondent, v. DANIEL WEST, Defendant and Appellant
• Court: Arizona Supreme Court

36 P. 207

4 Ariz. 212

TERRITORY OF ARIZONA, Plaintiff and Respondent, v. DANIEL WEST, Defendant and Appellant

Criminal No. 80

Supreme Court of Arizona

January 26, 1894

APPEAL from a judgment of the District Court of the Fourth Judicial District in and for the County of Yavapai. John J. Hawkins Judge.

J. F Wilson, for Appellant.

Francis J. Heney, Attorney-General, and J. C. Herndon, District Attorney, for Respondent.

Rouse J. Baker, C. J., concurring. Sloan, J., concurs in the judgment.

OPINION

The facts are stated in the opinion.

ROUSE J.--

Appellant was indicted and tried for the crime of "an assault to commit murder," and a verdict was returned finding him guilty of "an assault with a deadly weapon." Judgment was pronounced against appellant, on said verdict, that he be imprisoned in the territorial prison; and he appealed, and urges as ground of error that the crime of which he was found guilty is not charged in the indictment against him, and for errors of the trial court in giving a certain instruction, and also in failing to give an instruction defining a "deadly weapon."

The indictment on which he was tried is as follows: ". . . The said Dan West is accused by the grand jury of said county of Yavapai, by this indictment, of the crime of a felony, committed as follows, to wit: The said Dan West . . . did unlawfully, feloniously, willfully, deliberately, premeditatedly, and with malice aforethought, upon the body of one R. B. May, then and there being, commit an assault with a certain deadly weapon, to wit, with a pistol, generally called and known as a 'six-shooter'; said pistol then and there being loaded with leaden bullets and gunpowder, and then and there being held in the hands of the said Dan West, and said pistol then and there by said Dan West, being pointed towards, at, and near the body of said R. B. May, and said pistol then and there being cocked, and ready to be discharged, by unlawfully, willfully, feloniously, deliberately, premeditatedly, and of his malice aforethought, pulling the trigger of said pistol, and attempting to discharge the bullets from said pistol at, towards, near, and into the body of said R. B. May, the said Dan West then and there having the ability to discharge and fire the leaden bullets from the said pistol at, towards, near, and into the body of said R. B. May, with the . . . intent him, the said R. B. May, then and there to kill and murder. . . ."

The court gave a number of instructions requested by parties among which was one for the territory, numbered 7. Appellant complains of said instruction. It is as follows: "The court instructs the jury that, under the indictment in this case, they may find the defendant guilty of assault with intent to commit murder, or guilty of assault with a deadly weapon, when no considerable provocation appears, or when the circumstances of the assault show an abandoned and malignant heart; and if, after a full and careful consideration of all the evidence, the jury have a reasonable doubt that the defendant was guilty of an assault with intent to commit murder, but do believe from the evidence, beyond a reasonable doubt, that defendant is guilty of an assault with a deadly weapon upon the person of said R. B. May, where no considerable provocation appears, or under circumstances which show an abandoned and malignant heart, then the jury should so find by their verdict." By said instruction the jury were advised that if they had a reasonable doubt of defendant's guilt of the crime of an assault to commit murder, they might find defendant guilty of the crime of an assault with a deadly weapon. The indictment is good as a charge for an assault to commit murder, and it also contains allegations which make it a good charge for an assault with a deadly weapon. An indictment is an accusation in writing, presented by the grand jury to a competent court, charging a person with a public offense. Pen. Code., par. 1409. The term "public offense" in this territory has the same meaning as the word "crime," and they may be used interchangeably. They are defined to mean an act committed or omitted in violation of a law forbidding or commanding it. Pen. Code, par. 15. Crimes are divided into felonies and misdemeanors. Pen. Code, par. 16. A felony is a crime which is punished with death, or by imprisonment in the territorial prison. Pen. Code, par. 17. An indictment must contain the title of the action, the names of the parties, a statement of the acts constituting the offense, in ordinary and concise language, and in such manner as to enable a person of common understanding to know what is intended. It is sufficient if, in the indictment, the name of the crime is given in its legal appellation, such as murder, arson, manslaughter, burglary, or the like, or to designate it as a felony, with a statement thereafter of the acts or omissions constituting the offense. The indictment must be certain as to (1) the party charged; (2) the offense charged; (3) the particular circumstances of the offense charged, when they are necessary to constitute a complete offense. In this territory, a crime which may be punished by imprisonment in the territorial prison, or by a fine or imprisonment in the county jail, is a felony, if imprisonment in the territorial prison be imposed. Pen. Code, par. 17. "An assault with a deadly weapon" is defined as follows: "Every person who commits an assault upon the person of another with a deadly weapon or instrument, or by any means or force likely to...