*1 83 14,224. No. People.
Lane v. (77 121) [2d] P. February
Decided 1938. *2 error. Lappe, for in plaintiff De De
Mr. S. Bybon Mr. Beid Bogebs, Attorney General, Mr. G-. the Assistant, people. Williams, En Banc. of the opinion Holland delivered the Justice
Mr. court. in trial error, in defendant a
Lane, plaintiff county of where in Jefferson the district court Arapahoe venue change taken on of from a case was the battery, found him of county. guilty of court sentenced him to a term verdict, the and on the error to the assigns in He jail. six months defendant. be made to him herein as will and reference mainly relies assigned, the errors many Of the sustain his combined of court the refusal upon and in new verdict, grant the motions set aside in thereof being the grounds of of judgment, arrest attorney the district served substance, he was an information of arraignment the at time of court, one on file with the from the materially different pro- the entire trial had which upon practically He him. the difference was discovered before ceeded information at waiving asserts guilty, of not plea entering arraignment, time of in- of assumption upon did so shortly awas theretofore, him served formation all to with the his court, the one on file of true says prejudice. Defendant also that court erred supplemental overruling motion for based new part newly on is claimed which it discovered evidence credibility complaining* witness. would affect the Arapahoe February 2, On district county, attorney following* filed informa- district tion:
“Harry Attorney Behm, District and for within First District of Colorado, Judicial State authority People name and of the State of day Colorado, informs 28th court, that, on County January, Arapahoe, A. said D. of Colorado. state deadly “Harvey weapon, with a to-wit, Lane, brass Harvey knucks, had said Lane then and there unlawfully, wilfully then held, maliciously Harry did make assault on one *3 Gr. bodily injury upon intent Thomas, with to commit the person Harry Thomas, of the no said considerable Gr. provocation showing there then and an abandoned and malignant Harvey heart the said him, Lane, and at place said time and did strike, and beat, wound, bruise Harry body contrary the of to the form of Thomas, Gr. provided against the statute in case such and and peace People dignity of the the of and State of the Colo- ’’ rado. Arraignment immediately, followed the record show- ing following’: the thereupon Harvey
“And the said defendant Lane arraigned, and this said information here read to him,, required plead Whereupon and he is thereunto. guilty answers and saith that he is not in manner and form as in aforesaid, and this said information he charged. puts stands And of this he himself country, Attorney and the District does like.” very following arraignment,
At the time, and change fendant granted,, moved for a of which venue, county district court of Jefferson where trial was. 18, on March 1937. and had 17 and Defendant contends, upon the his counsel so testified that on the morn- February just prior arraignment, ing of 2, attorney handed defendant and his counsel a district copy they being which information understood of having copy, further claimed that such and filed. It is being- therein its contents and familiar with presence defendant, made, counsel for defendant’s arraignment, of at time of waived the guilty. plea of entered information and Ex- of is marked defendant’s served so following words: hibit and is “Harry Attorney for the within and Behm, District of Colorado, District of the State First Judicial name and People authority of the said 28th that, on the the Court informs Colorado, State of day County January, said A. D. deadly weapon, Arapahoe, Harvey to-wit, Lane, with a Harvey then the said Lane brass knucks, wilfully unlawfully, held, then there had and there Harry maliciously on Gr. did make and Thomas bodily injury upon the intent to commit provo- Harry person considerable Gr. no Thomas, said appearing assault, such cation then and showing thereof then and there circumstances the abandoned Harvey malignant him, heart in the said contrary in such case statute form Lane, dignity against peace provided made and People the State of Colorado. “Harry Attorney Behm, District *4 “By Attorney.” Deputy District Monson, A. T. copy, wording this latter from the It is clear aggravated charged an assault and with defendant materially battery. particular, it is a not with on under which the information file from different charges that information convicted, fendant was battery. aggravated a assault an both filed, the information as No made attack is appear open it does not that it is to a successful charges attack. deadly weapon assault a bodily injury alleges battery with intent to commit a in connection with the assault. While the entire record is not us, before and we are not advised as to the nature appear of the it instructions, does that the court with- charge deadly weapon drew of assault with a from jury, consideration it con- claimed and not tradicted that instructed the under charge the battery. it information, consider could of assault charge That it did so consider the is evident from verdict. The information as filed included as- battery sault and because An averred. information bodily charging assault with intent to do harm does not battery charged, include if a such is not include but does simple necessarily part ag- a as such is a assault, gravated assault. It is clear that under the alleged have been furnished defendant, charge battery charge laid weapon deadly great of assault with with intent to do bodily having harm, been withdrawn from the consider- jury, ation of not have defendant could been con- degree higher simple victed of crime than that of assault. they as all facts, uncontradicted relate to present
of the circumstances of the novel but interesting only problem and on situation, the whole our on this review is determine whether or prejudiced could have been under circumstances. justice, always Substantial if it can ascertained, be must prevail. review herein evidence discloses an complaining altercation between witness and de aggressor dispute, fendant. which was As to inis complain but we cannot overlook the ing deadly weapon, witness that was assaulted with namely, brass knucks. Such if in made with bodily high tent harm, do is a misdemeanor. The complaining subscribing witness knew the time of
88 other any time., as well as he knew at information, examina- Under
whether or not was true. this he that de- upon tion first testified witness stand him knucks, qualified struck and then fendant “I knucks; was I don’t saying, say statement couldn’t it at not it know what it was.” If he did know what was certainly time he he did not know the time fight verified information. That ensued which disputed. came out is not complaining best, witness second eye physician He received a cut over one which a small was in nature of a “gouge,” testified that it nail testified was caused his thumb when reluctant complaining struck at witness. areWe that to evidence in this case believe justified imposition of the maximum of six months in penalty jail; however, penalty is with the trial discretionary statutory court within the limitations. As stated here- the circumstances of the tofore, proceedings peculiar. are Under statute, our of this character cases the defend- ant shall, previous be furnished with a arraignment, if copy of the information he or his counsel re- make a quest therefor. must be made request prior entry waiver of of a arraignment plea charge. or the. refusal furnish when so consti- copy requested exception tutes reversible error if is properly thereto by defendant, preserved. request Such considering light fairness, viewed him such fail- undisputed facts, cannot penalize we ure when he claims furnished with a attorney, which he sup- the district he was to As- posed be tried. was the one it claim, denied, is suming the truth failure do not be fendant prejudiced should ordinarily thing or doing a useless thing, the circum- done under would have person cautious Exhibit information, defendant’s stances. attorney. district signature deputy is over the clearly it It handwriting carbon is stated thereon equally is verified. *6 original the out in it as set clear that is not the record trial court defendant before us. The held plea on file the record to his to the information because reading plea on disclosed such a the information. the Attached to defendant’s motion and the correct amend the record, denied, is' the affidavit reporter present the official court Abbott, who was arraignment. the time of the this affidavit he states pro- his that he has searched shorthand records of the day,- ceedings of no that while finds notation that he particular concerning proceedings in is case, he certain that bar defendant was and called to counsel waive, his announced that he and did would waive, the of the information and defendant plea guilty. circumstances, entered of not Under such rely upon if defendant did furnished him, relying, prepared so for a defense as copy, appeared such reliance was what attorney be an official act of district and we are unable to than see that did circumstances other justified. discovery variance between the information on file furnished and upon by relied until defendant not made was nearing was and after much evi- end of defendant’s jury. people was for the dence tend that before the Counsel con- they whereby unable wherein are to see or prejudiced. saying fendant was that we Without see prejudiced, wherein can not with confidence we say prejudice such occur. That did not defendant by surprise stage proceedings taken at a change it been where would have difficult for him to seriously questioned. defense be his benefit, cannot promptly apt discrepancy He called time copies of the information as filed and served to the ruling attention of the court, and to adverse on his exception. again presented motion saved his He subsequent to the trial court motions here- matter have believe should been which we tofore mentioned and it conclusion, unnecessary our granted. being other errors. assigned discuss remanded cause reversed trial. another directions to grant concur. Mr. Justice Mr. Justice Hilliard Bakke Young con- Mr. Justice Mr. Chief Burke Justice cur the conclusion. and Mr. Justice Knous dissent.
Mr. Justice Bouck Mr. dissenting. Bouck, Justice
I for a calling herein opinion cannot concur *7 a I think should reversal trial. and new be affirmed. convicted here, was
The in error defendant, plaintiff of assault “guilty in a verdict by brought a battery.” and the defendant charges
The information on file that which he to-wit, “with a brass deadly weapon, knucks, * * * then and there unlaw- held, then and there had and wilfully maliciously make assault on one fully, and did an bodily commit injury to a Thomas, G-. with intent Harry * ** considerable provo- no upon person Thomas, assault, cation then for such and [appearing and there an showing the circumstances thereof then and there]1 * ** heart and at malignant Lane, abandoned and wound, strike, time bruise place beat, said did and * * * are contrary,” (Italics etc. Thomas, the body of mine.) to, did, was intended obviously intent commit under ’35 bodily injury
assault with misdemeanor” which carries A., 48, “high C. S. c. a §67, information, but were appear in the 1 The words brackets copy record herein. See At inadvertently omitted from the record,” filed transcript of the torney in this court March “petition to amend the General’s defendant. and consented penalty imprisonment year’s a not more than one county jail exceeding $2,000. not fine complains
The informa- that upon original, tion served correct him is not discrepancy that the was not discovered him and his way, until the counsel trial under was well and that prejudiced thereby. was copy alleged record filed this court we find given orig- exactly
to be to Lane. like except quoted portion inal that above the italicized copy. latter from the In other words, omitted alleged copy language charging does not contain the battery. district court
The record recites infor- mation read to defendant, then pleaded guilty. in connection defendant, his motion in below to correct the record, introduced evidence to the effect that the district attor- ney began read, counsel then declared the de- fendant waived the information, guilty plea. entered the not The trial court considered pro against eon, evidence and ruled the defend- binding ant. This would seem be our court aas disputed conflicting decision of fact court on evidence.
However,’ whether was or defective as claimed, and whether or not the information was read possibly I defendant, think the defendant could not *8 any prejudice. He have suffered does not or disclose injured. Nothing hint have how could been more than any a misdemeanor in was involved the case at time. Service of a of information in a misdemeanor required request case is not until is §452. fendant. ’35 G. S. c. A., in Assault is defined ’35 C. c. A., S. and assault §66, battery §68 penalty thereof. is defined The penalty exactly for the and the other are namely, imprisonment county jail same, not not six or a fine Id. exceeding $100.
more than months in- is that under either admitted §68. wording employed formation as filed or under the the defendant incomplete guilty could copy the find any error Our is not called to of attention assault. evidence. trial on an assault of admission of resultant is course admissible as to evidence charge, it was deciding, Even but not beating. assuming, battery in an informa- charge an assault and irregular bodily with intent to do charge an assault tion intended only cover such and that could injury, assault, but simple assault and a not aggravated invariably since an assault is battery, I submit that, and since battery, within an assault and included Colorado, is same in exactly for each penalty harmless battery” should considered as “and be words surplusage. instructions given any nor
Neither the instructions trial by the court and refused the defendant tendered instruc- the defendant. The brought up have been the question have submitted jury may given tions battery. of of innocence assault and guilt defendant’s or certainly defendant did object, If and if the so, of as- and under law under the facts now, could charge this battery state, sault of being us, thereon. instructions not before error The court no evidence whatever being* prejudice, error that no conclusively presume should prejudicial sufficient to amply has committed. is been evidence charge battery, have of assault and supported support included amply therefore sufficient trial and conviction To nullify assault. equivalent appearing circumstances here under the against presumption indulging an unauthorized proceedings. court’s validity regularity in error lawfully plaintiff relieve a cannot affirmatively showing preju- both error and burden neither. here shown has dice. The defendant *9 judge any So far one can as record comes appellate an impartial court, the defendant here has had a fair and regret day legal I
trial. that, when profession large, throughout as as well courts striving' to land, are eliminate technicalities from crim-' prosecution, appears inal this to stand satisfactory system. older and less should be affirmed. respectfully For the reasons I stated, dissent.
Mr. Justice Knous concurs opinion.
No. 14,184.
Maneotis v. Cross et al. (77 1199) [2d] P. Decided February 1938. Rehearing denied March 1938. Judgment department affirmed in without written opinion, Mr. Chief Justice Mr. Burke, Justice Bouck, Mr. Young Justice and Mr. participating. Justice Knous Mr. Addison M. Gooding, in error. plaintiff Mr. B.C. Monson, Mr. J. F. Meador, for defendants in error.