Mill v. State

546 100, 858, v. 228 Ala. state is responsible

Harris So. to refund the case, In this since all of the overpayment, it also overpay- refunds the directly of the act relate to state provisions ment with 8% interest. AS 43.05.280. Sim- we find no violation of the one taxation ilarly, taxpayer any if a for reason under- subject rule. taxes, pays his interest will also be due. Any perceived injustice in this rule can be V mitigated by interpleaded placing funds in question taxpay- The next is whether the account, an interest bearing done was Borough are ers liable to and the State here, or in bearing interest securities. penalty money and interest on de- interpleader in court when ac- posited VI brought. money deposit- The was tion The Borough State and the appeal also time prior taxpayers would ed award of attorneys’ costs and against fees been in default. on Based its inherent them. Since we have reversed judg- equitable power, superior court refused based, ment on which award was all a late taxpayers pay payment concerning matters costs and attorneys’ penalty interest. fees must be redetermined the trial agree the superior We court. justified PART; AFFIRMED IN IN REVERSED taxpayers pay payment penalty. late PART; AND REMANDED. purposes penalty late provisions The are payment encourage of taxes

timely payment of and to punish taxes pay pur who do not on time.

those Those

poses Taxpayers are not contravened here.

were confronted situation where two

government competing entities were for the tax

same dollars. Before taxes were entity, to either in an default under MILL, Appellant, Robert Dewain paying standable desire avoid double tax es, taxpayers interpleader utilized an action pay Civil made under Rule their Alaska, Appellee. STATE of registry

ment into the of the clerk of court. No. 2692. In similar situations have been held courts power statutory waive have inherent Supreme Court of Alaska. penalties. Corporation General Petroleum 20, Oct. Smith, 239, 356, 360 62 Ariz. 157 P.2d Atkins, (1945); Tenn. Swartz (1958); Meyers v. Arca

S.W.2d see Foundation, Inc., 367 Realty

dia S.W.2d (Ky.App.1963). however, agree, do not

superior interest court’s conclusion

should be waived. The of inter ‍​​​​​​‌‌‌​​​​‌‌​‌‌‌​​‌‌​​​‌​​​​​​​‌‌‌‌​​​​​‌​​‌‌‍ assessment payment punitive

est for late has no ele is logical

ment. While it to relieve a tax

payer paying penalty, where under

circumstances such as this he has been misconduct,

guilty of no interest stands footing. non-perjorative.

a different It is taxes, a taxpayer overpays

When

Edgar Boyko, Edgar Boyko Paul Paul & Associates, appellant. for Anchorage, Anderson, Atty., Asst. Dist. Glen C. Jo- Balfe, Atty., Anchorage Dist. seph D. Gross, Gen., Juneau, Atty. Avrum M. appellee. J., BOOCHEVER,

Before C. and CON- BURKE, NOR and JJ.

OPINION CONNOR, Justice.

Appellant conviction seeks to have his dangerous weapon reversed. (1) the crime He contends of assault dangerous weapon be rede- should intent; requiring specific fined as a crime (2) that a defense of diminished applicable should be crimes intent; only general (3) that improper argu- made an final prosecutor ment which the trial court refused miti- instruction; (4) by a curative gate his sentence should be reduced. logging Mill started a small 1973 he business Palmer in 1970. Vincent, Douglas independent hired trucker, lumber from Canada haul May, mill in Palmer.

arranged to have truck- with Vincent four Canada, transported from loads of lumber load, paid and he Vincent per $2400 at $600 delivered two cash in advance. Vincent agreed, but a and one-half truckloads as supplier’s shortage delayed delivery his the rest. time, began suspect

At Mill trying to ruin business. Vincent his Vincent had Mill testified at trial after him with the informаtion that threatened going capital banks were withhold put him orally and also threatened to out business, suspicious that Vincent he became directly to deal with Mill’s Cana- begun had testified that he supplier. dian further being pressure applied felt tremendous battling against he was to him because small, in- sale which excluded state timber he dependent loggers. He stated that had opposition to cease his I. offered bribes been that his instigation the sale testified Appellant first сontends that we should grand jury investigation of the matter in Thompson overrule our decision burning had resulted two of his (Alaska 1968), 444 P.2d 171 and hold that the harassment mills arsonists ‍​​​​​​‌‌‌​​​​‌‌​‌‌‌​​‌‌​​​‌​​​​​​​‌‌‌‌​​​​​‌​​‌‌‍and the crime of assault with a dangerous threatening family by telephone wife and weapon requires specific intent to do bodi- emphasized He the financial im- calls. also injury the ly 11.15.220, to victim. AS which of the fourth truckload of lumber portance defines the offense of assault with a dan- his to business. gerous weapon, as it read at the оf time the offense, is itself silent on of the issue in- 6, 1973, with July On Vincent returned tent: last truckload of Canadian lumber. Mill’s “A person with dangerous armed weap- past appellant’s He drove Palmer mill with on, who assaults another with weap- the load, horn, the honked his and made an on, punishable by is imprisonment in the Mill insulting gesture out the window. penitentiary for not years more that 10 went out in search Vincent and load of the nor months, less than six byor imprison- of lumber and found them at another man’s jail ment in for not year more than one mill. month, nor less than by one or a fine of approached Mill where he saw a cabin not more than nor less than $1000 $100.” Vincent, bodyguard, and two oth- Vincent’s Since 11.15.220 was AS modeled on Ore- loggers emerged er inside. Vincent from statute, gon’s the Ninth Circuit Court of beckoning and, at when the cabin Mill’s Appeals, acting as Alaska’s ap- territorial lumber, about the refused to questioned court, pellate adopted Oregon the Supreme money. it or to Vin- turn over return Mill’s Court’s construction that the statute re- rejoined then the others inside the cent specific quires no intent. Burke v. United cabin. States, (9th 1960). F.2d Cir. In At that Mill took his rifle out his point, following of v. Godfrey, State 17 Or. 20 P. (1889), of positioned truck and on the window Burke court stated: He Vincent he wanted the cabin. told interpret “We Godrey these words of to gun to talk racked the when Vincent mean that a intent to do a harm stepped hesitated. When Vincent over required is necessarily included cabin, threshold of the Mill ordered him to within ‘assault,’ the definition of the term stop approach. kept walking his Vincent but anot do any partic- and, giving toward Mill after second un- ular degree kind or injury of to the vic- heeded Mill shot Vincent in stop, (original order tim.” emphasis) leg. then stood over wounded 282 F.2d 768. adopted interpre- gun him write man with his and ordered Thompson tation in supra. The a check he owed amount on case, trial the instant relying on hand, lumber. he had the check in Once in Thompson, our decision instructed the police Mill called the and an ambulance. jury that it need not find that Mill “specifi- cally intended to actually inflict serious brought charges Mill was to trial on bodily injury” in order to convict him of assault with intent wound a dangerous weapon. assault with Appel- jury guilty maim. The found Mill claims that lant this was reversible error. lesser included offense dangerous The trial court sen- weapon. urging that we overrule Thomp son, year prison. appellant tenced one contends that in analyzing years subsequently months, AS 11.15.220was amended to thаn 10 nor less than six or read: $1000 a fine $100, than more nor less than both.” or person weapon, dangerous “A armed with am 2 § ch. SLA 1976. weapon, who assaults another with punishable by imprisonment for not more (a) attempts to weapon, we cause serious in- dangerous bodily constitutes what another, upon aggressor's principally injury or causes such have relied harm, bodily citing to do specific intent purposely, knowingly recklessly or under State, 524 P.2d 664 Thomas manifesting extreme circumstances indif- beсause we have 1974). argues that He life; ference to value human object otherwise innocuous characterized (b) attempts to cause or purposely or aggressor when the dangerous weapon, as a knowingly bodily injury causes to another injure victim, with the intent to used it weapon.” (emphasis a deadly add- bodily injury is an specific intent do ed) of assault with a integral part the crime 211.1(2) (Proposed ALI Model Penal Code § However, appellant weapon. state, focusing Draft The Official opinions on our earlier has misconstrued language “purposely knowingly caus- subject. holding telephone (b) bodily injury,” argues es that subsection weapon in qualify dangerous as a could require provision always of this does not a Thomas, our earlier decision in we relied on injure specific intent the victim. The 458 P.2d 1008 Berfield v. urges although “pur- state that the term 1969), pair was held to in which a of boots posely” implies necessity specific for a dangerous weаpon under AS 11.15.220. abe injury, “knowing- intent to cause the term the intent of the it was not In Berfield ly” requires only general scienter or intent. bodily the boots to inflict wielding person “knowingly” Model The Penal Code defines persuaded which us on his victim injury follows: as dangerous weapons; were that the boots in which the it was the manner instead “Knowingly were used: boots person respect A with knowingly acts they because dangerous “The boots were a material element of an offenses when: fight with —as something werе used as instruments exposure because such serious controlling. Baker’s sault Baker rious omitted) ner that injury.” dangerous in these circumstances their use head and brain. or liability to serious of offensive injury did not result It is (emphasis capable enough that used his boots accompanied by added) combat. The fact producing injury the man- (footnote is not to as- They se- ALI Model Penal Model “knowledge” Perkins notes that both § 2.02(2)(b). conduct, he certain that his conduct will cause such a result.” (ii) if the еlement involves a result of his ^[*] Penal n as used is aware Code n treatise can constitute intent: in the that Code, : n provision "purpose” criminal is practically sfc supra, of the sj; law, consequences those “Intent includes Thus, previ- we not have P.2d at 1009. (a) represent very purpose which in- specific aggressor’s ously looked to (regardless which is done of likeli- an act as a dan- examining qualifies what in tent occurrence), (b) or are known to hood argument on weapon. Appellant’s gerous substantially (regard- certain to result us. persuade does point desire).” less of argument policy a next makes Appellant Perkins, p. His Law at be overruled. R. ‍​​​​​​‌‌‌​​​​‌‌​‌‌‌​​‌‌​​​‌​​​​​​​‌‌‌‌​​​​​‌​​‌‌‍Criminal Thompson should Penal Code appears on the Model Thus it clear that the Model Penal argument is based classify dealing states to with with provision trend other assault and the Code specific intent assault as aggravated deadly weapon specific does in- bodily injury. crime. tent to do 211.1(2) many Model Penal Code It states define assault of the is true that Section specific in- part: provides harm physical Intent to do tent crime. See “(2) person Assault. A Aggravated element of crime he: as essential assault if guilty aggravated Annot., deadly dangerous weapon, earlier decision Thompson State, supra. (1963). But require- point 92 A.L.R.2d 635 On this there was no error. physical intent to do harm nor- ment II. mally specific statutory pro- derives from a vision, judicial rather than from construc- cоntends that should tion. permitted have been to consider evidence his diminished mental as a defense argues several Although appellant to the intent crime of assault with a imposed specific have intent other courts dangerous weapon. oth- requirement upon a statute which was intent, on the issue of erwise silent previously drawn a distinction are squarely cases which he cites between the defense of mental disease or argues point.2 The state the Alaska dеfect, which absolves defendant from statute’s silence on the issue of intent responsibility any type impose specific not lead us in- should crime, and the doctrine of capac- diminished requirement, legislature since the has tent ity, which acts to negate specific mental states when it has denoted mental element or necessary appropriate. them to be of the found One charged offense. support statutes cited the state in of this “The diminished capacity doctrine is 11.15.140, argument is which defines the AS based on the theory that while an accused mayhem: crime of suffering not have been from a men- Mayhem. who, A person with malicious tal disease or defect at the time of his . disfigure: to maim or . . intent offense, totally sufficient to absolve him

of criminal responsibility, the accused’s mental capacity may have been diminish- (3) person assaults another with a dan- by intoxication, trauma, ed or mental dis- instrument, . gerous (empha- . . ease to such an extent that he did added) not sis possess specific a mental state or intent by provisions Also cited state as particular essential to the offense.” legislature the men- specified which the has (footnote omitted) required prohibit- tal state are statutes 118, Johnson v. 511 P.2d ing shooting, stabbing cutting or with in- kill, wound, maim, (AS 11.15.150); The doctrine of capacity, to or diminished tent then, has a limited rape with intent to kill or commit or function. assault 11.15.160); robbery (AS and assault while defense, Our statute on the “insanity” AS 11.15.190, (AS to armed “intent 12.45.083, provides person that a cannot be prevent person resisting other or from responsible held for his criminal conduct if himself.”) defending conduct, at the time of the as a result of summary, appellant urges defect, act In that we mental disease or “he lacks substan- legislature tial capacity where the has not and to appreciate wrong- either specific an element of intent the crime fulness of his conduct or to conform his dangerous weapon. We are rеquirements conduct to the of the law.” unpersuaded. implied No court has such a If the doctrine of capaci- diminished mental ty a requirement from statute as silent as were available to show the defendant’s ours, and we have no reason to overrule our ability lack of to form a general to intent Fitzpatrick, 400, require specific v. In State Mont. should be construed to intent. 300, Turner, (1967), Supreme (10th P.2d 301-02 the Montana Green 409 F.2d 215 Cir. specific physical 1969), being interpreted to pro- Court held that intent cause the Utah statute not an the crime harm was element essential to vided that the offense must be committed deadly weapon, citing bodily just of assault with “with intent to harm do and without States, supra. excuse, Alaska case of Burke v. prov- United cause or no or when considerable Katz, 361, 482, People 290 N.Y. appears, N.E.2d ocation or when the circumstances (1943), the court held that the use of the malignant show abandoned and heart.” “willfully wrongfully” in term the statute act, capacity func- crime and diminished is not it would be a de- prohibited perform the defense general from indistinguishable People fense to intent crimes.” tionally serve and would 773, or defect Gauze, 718,125 of mental disease Cal.Rptr. 15 Cal.3d incapac- degree of mental to lessen the only (1975) (citations 1370-71 P.2d “in- complete to necessary constitute ity omitted) (dictum). no would The defendant sanity” defense. he was substan- longer prove A capaci defendant whose mental or con- making choices tially incapable possess ties have diminished not been need He would forming actions law. es certain mental state or intent capacity had his mental prove that the doctrine of sential crime. If way diminished. lesser been some capacity diminished due to mental illness argues that defect available show lack act, suffering general from intent to do an it would have person may be “[A] that he is to such an extent defect the same function as the defense of mental mental forming even incapable of any We disease defect. are aware prohibited act. do the intent [This] jurisdiction in which diminished capac- diminished analysis applicable negate general can be invoked to grasp has such where the illness ity plead intent a defendant who does not possible no that the accused has mind as a mental disease or defect defense. at the controlling his behavior means hold that the trial court did not err was taken.” the action time its giving jury subject. instructions on this ac- Where, appellant hypothesizes, to control his substantially unable cused III. require- it and conform behavior the frame- law, within of the he fits ments Although appellant was indicted for disease or of mental of the defense work maim, shooting with wound or ca- rely diminished and need defect was instructed that could convict pacity. of him of the lesser included offense assault respon- diminished discussion of the dangerous closing Since In its weapon. with is California’s based on sibility in Johnson the that com- argument, argued state Mill People in of the doctrine formulation separate mitted three assaults with a dan- 815, 310, Cal.Rptr. 411 49 Conley, 64 Cal.2d gerous weapon: (1) pointed when he the Johnson, (1966), 511 911, cited in 914 P.2d gun the at through window the men inside ap- 124, of at a discussion California’s P.2d cabin; (2) actually when he Vin- the shot helpful. Cali- may be this matter proach to (3) leg; when cent the and he stood over weap- deadly with a held assault has fornia gun Vincent with the until Vincent wrote only general to be an offense argued any that of him a check. The state Rocha, Cal.3d intent, People 3 criminal support those incidents could a conviction 372, 172, 376 479 P.2d 893, Cal.Rptr. dangerous weapon. assault with that the defense (1971). has also held It argument is appellant’s The thrust of form of irresista- the diminished shooting he was indicted for that since ‘complete “is impulse received ble maim, wound or he could with intent any commit capacity to negating defense’ of the with a оnly be convicted assault negating ‘partial defense’ but as a crime in- which was lesser a particu- state essential mental shooting. argued the It is cluded offense of 469, Noah, 5 Cal.3d People v. lar crime.” through pointing gun at Vincent that 1009, 447, 441, 487 P.2d 478, Cal.Rptr. the window or after Vincent had been shot Recently, Supreme Court which had never separate actions approval these two with California noted any charge formed the basis of criminal that “assault stating previous decisions cоntends, therefore, that against Mill. He deadly weapon is a with not amount to lesser offenses they could not convinced argument the state’s that shooting charge.3 within the the sentence was included too lenient. AFFIRMED. We note that set indictment victim, time, place, and offense forth ‍​​​​​​‌‌‌​​​​‌‌​‌‌‌​​‌‌​​​‌​​​​​​​‌‌‌‌​​​​​‌​​‌‌‍MATTHEWS, RABINOWITZ JJ., and charged. necessarily That offense included participating. dangerous weapon. Appel with a BURKE, Justice, dissenting in part. unfairly lant cannot claim that he sur I dissent from holding set forth in argument prised by prоsecution’s to the III part opinion. of the majority himself jury, testified begin I preceded premise events which and followed the that is a funda- shooting. view mental rule of law: We these events as a series One be prosecuted acts, and convicted for only in a and those sequence, short continuous crimes that charged against have been unitary him. The epis which amount im- portance denied; of this rule cannot be that it was ode.4 believe error for the very provides lеast it a means of ensur- permit the state to argue court that ing every that criminal action the de- separate were three there assault with fendant will know precisely what conduct In the this dangerous weapon. context of he she must explain, refute, seek to however, case, in which were was dis no justify.1 gives Thus the rule substance to as to the actual pute facts no conceiva that constitutional process ideal of due way ble that the con could been every which affords member society fused, we conclude that the error was right given notice and an opportunity harmless.5 to be being heard before punished for a crime. Chambers v. Mississippi, 410 U.S. IV. 284, 294, 1038, 297, 93 S.Ct. 35 L.Ed.2d (1973); Arkansas, 196, Cole 201, 333 U.S. years to five im was sentenced 68 S.Ct. 92 L.Ed.2d (1948); prisonment, four with suspended, Alto v. 565 P.2d the recommendation that Mill be considered I, Article section 11 of the Constitu- parole year after one-third of his one tion of specifically provides Alaska sen service. claims accused entitled to be informed “[t]he excessive, given any tence is his lack of the nature and cause of the accusation.” prior unique record circumstances shooting. of the Our review of the record This say is not one when properly weighed reveals charged with an offense he or she must Chaney, v. criteria of always State P.2d be either convicted of that (Alaska 1970). opinion In our the sentence fully crime or exonerated for his or her clearly Similarly, was not mistaken. we are acts. On the contrary, where the elements closing argu- 1970), lenity 3. Prior to the commencement of the rule of would ments, appellant’s attorney objected the play. marginal to come into cases doubts arguing separate of as- state three incidents against should turning single be resolved a and, dangerous weapon sault with a the after multiple transaction into offenses. See Bell v. argument, requested give cura- that the States, 81, 84, United 349 U.S. 75 S.Ct. tive instruction. (1955); States, L.Ed. 905 Ladner v. United U.S. 79 S.Ct. 3 L.Ed.2d 199 out, accept points appellant’s 4. theAs state argument every would mean that movement State, (Alaska 1969). 5.Love 457 P.2d 622 away prospec- a rifle barrel toward or from tive victim would charge. a distinct criminal 7(c) part: 1. Alaska Crim.R. states in presented If this case in a to us form, e., appellant’s converse i. con- whether The indictment or the shall information be convictions, separate could duct sustain three plain, concise and definite written state- difficulty upholding we would indeed have constituting ment of essential facts the of- Apart jeopardy such considerations, result. from double charged. fense see Whitton P.2d Now, guilty he necessarily subsume was of assault charged offense with a the weapon, deadly more offenses at of one or lesser elements the the moment he came up there to that implied that those lesser of- logically it is pointed gun window that Thus, Vincent. charged as well. fenses have been point At that was guilty he of an ADW. prove fail mаy the state while . When he stood over the man satisfied all the the defendant conduct2 of check, made him write out a there’s offense, explicitly charged elements of right another ADW there. ... Of proving that that may successful it course, fellow, when you he shot the if what termed a conduct did amount kill, that he have find didn’t the intent to As we observed in included offense. lesser wound, maim, another ADW there’s Jennings v. State:3 right there. . 31(c) provides Rule Criminal [Alaska] doing attorney, my so the state’s guilty be found that “The defendant opinion, committed an obvious funda- necessarily included anof offense error; is, mental he urged Mill’s con- . .” charged . . An offense offense viction offenses that were never in the offense necessarily included charged. Although might error mag- former is of less charged where the by instructing been cured jury to disre- gravamen but the latter nitude than gard improper portions of the argu- same, is the or where of the two offenses ment, request by defense counsel for such not have committed the offense one could result, an instruction was denied. As a it is having also committed charged without impossible now to ascertain whether the magnitude. the offense lesser [Foot- jury’s verdict was based on a determination notes omitted.] that Mill committed a lesser included of- charged case Mill was In this fense of the act with which he was charged, his conduct. act as a result of one criminal or a that he determination had committed a kill, with intent to shooting That offense— seрarate charged. assault that was never committed maim—cannot be wound or Therefore, I are required5 believe we committing also without the offender to reverse his conviction and remand dangerous weap- of assault offense case a new trial. possible jury for the Therefore was on.4 Otherwise, I concur. the specific find that lacked but that his act of or maim wound rifle constitute lesser shooting the did it was en- Consequently,

assault offense. prosecutor to ar- permissible for the

tirely shooting would

gue either offense. support conviсtion for CATLETT, Appellant, Michael question no that Mill There now be would he offense for which convicted Alaska, Appellee. STATE assistant district attor- charged if the argument. Regret- ney had so confined No. Instead, he so. went

tably he did do Supreme Court of Alaska. ‍​​​​​​‌‌‌​​​​‌‌​‌‌‌​​‌‌​​​‌​​​​​​​‌‌‌‌​​​​​‌​​‌‌‍objection by defense argue, timely over 27, 1978. Oct. other two as- committed counsel during saults with surrounding the actual

series of events stating:

shooting, 2, supra. mental and 4. See footnotes 1 and to both the 2. Conduct here refers specified components physical of that behavior 31(a) requires in the as criminal indictment. the verdict of 5. Alaska Crim.R. in criminal cases to unanimous. 3. 404 P.2d

Case Details

Case Name: Mill v. State

Court Name: Alaska Supreme Court

Date Published: Oct 20, 1978

Citation: 585 P.2d 546

Docket Number: 2692

Court Abbreviation: Alaska