State v. Broadbent

19 Mont. 467 | Mont. | 1897

Pemberton, C. J.

There are several errors assigned in this record. The counsel for the appellant contends that there was no arraignment of the defendant, or plea to the information by him in the court below.

This contention is not supported by the record, for it appears therefrom that the defendant was personally present in court, and was arraigned; that counsel was appointed for him; that he was ordered admitted to bail in the sum of $500, and, having waived the statutory time to plead, entered his plea of not guilty. In the face of this record we see no support for this assignment of error.

Counsel for appellant contends that the evidence is insufficient to support the verdict.

There is but little real conflict in the evidence. Witness Edwards testifies that he saw from a little distance the defendant, with a good-sized whipstock in his hand, dragging Plum around on the ground. He did not see defendant strike Plum, but when he got to where the parties were he asked what the trouble was. “The defendant said: ‘He called me a son of a bitch, and I hit him. I won’t take that off from anybody.’ I said to defendant: ‘I guess you have fixed him. I guess you won’t have to take it off old Dick any more. ’ Defendant said: ‘I did not hit him very hard. He will be all light in a little while.’ ” All this time Plum was lying on the ground unconscious. Plum is an old man. The defendant is a young man. Plum says he was walking along a pathway near the house, when he was knocked down by some one that he did not see, and that the blow rendered him unconscious for some time; he did not know how long; that when he came to his senses Edwards was there. Plum had a bruise on his cheek, and a wound on the back of his head about four inches long, from which oozed blood and bloody water. He did not get over the effects of this wound for some weeks. A man named Ritchie, who came with the defendant and went away with him, testifies that he did not see the whip in defendant’s hand, and did not see him drag Plum, nor any evidence of the dragging. But this does not really contradict Edwards. He swears that he did not see some things that Edwards swore to. That is all. Both witnesses may be telling the truth. We think the evidence, upon the whole, fully supports the verdict.

Counsel for appellant contends that the information will not support the judgment in the case, and claims that the information only charges an assault in the third degree.

This question was not raised in any manner in the lower court. It seems that the principal ground for this contention is that the information does not charge that the assault was committed by the defendant with the intent to inflict grievous bodily harm upon Plum. Under subdivision 3, § 401, Penal Code, 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, § 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. And, besides, the instruction especially complained of, for the reason that it omits reference to the specific intent to inflict grievous bodily injury, is not one in which the court is attempting to define the offense at all. In this instruction the court, in substance, tells the jury that it is not enough that they find that the defendant assaulted Plum, but they must also find that grievous bodily injury resulted therefrom. This instruction, we think, could not have been prejudicial to the defendant.

Counsel complains that the court did not fully instruct the jury as to the different statutory degrees of assault.

Without determining whether it was necessary for the court to instruct the jury as to the different degrees of assault or not, still we think the court did so sufficiently. The court told the jury, in substance, that they could, if the evidence warranted them in so doing, find the defendant guilty of assault in the second or third degree, after sufficiently defining the two degrees.

If the instructions were correct as far as they went, but, in the opinion of appellant, did not define the different degrees of assault as fully as appellant desired, he should have made requests to the court for fuller declarations of the law. This was not done. The record does not show that appellant asked for any instructions.

We see no error in the action of the court in overruling the appellant’s motion for a nonsuit, as it is called. The motion should be called a motion or request to instruct the jury to find a verdict of not guilty. Some of the reasons for this motion are out .of place, as they are rather grounds for demurrer.

The grounds for the motion in arrest of judgment are not well taken. The grounds assigned would find a more appropriate place in a demurrer to, or motion to quash, the information. And what has been said above disposes of these motions, if they had any merit.

We think the record, as a whole, discloses the fact and forces the conclusion that defendant had a fair trial on the merits of the case, and we are therefore not inclined to disturb the result.

The judgment and order appealed from are affirmed.

Affirmed.

Hunt and Buck, JJ., concur.