STATE, Respondent v. GRIMES, Appellant
File No. 11547
Supreme Court of South Dakota
January 15, 1976
237 N.W.2d 900
Affirmed.
DUNN, C. J., and WOLLMAN and COLER, JJ., concur.
DOYLE, J., concurs in result.
DOYLE, Justice (concurring in result).
The majority opinion deals with essentially two issues — one concerning the failure to plead affirmatively the defense of the statute of frauds, and, next, the failure to request an instruction on the subject. In my оpinion, the statements too narrowly confine this jurisdiction‘s attitude toward pleading. While it is true that the statute of frauds must be affirmatively pled, it is also true that it is not necessary to plead if the issue is tried by consent, either expressed or implied. The majority opinion, in my view, adopts an overly formalistic view. I would prefer to bottom the opinion on the defendant‘s failure to request an instruction, which is more in line with the Fales case cited in the opinion. To decide the case on the failure to request an instruction is in accordаnce with a long-standing rule in this state. See State v. Henry, 1973, 87 S.D. 454, 210 N.W.2d 169; State v. Barr, 1975, 89 S.D. 280, 232 N.W.2d 257.
William Janklow, Atty. Gen., Pierre, Earl R. Mettler, Asst. Atty. Gen., Fort Pierre, Gene Paul Kean, State‘s Atty., Sioux Falls, for plaintiff and respondent.
WINANS, Justice.
In connection with the arrest of her husband а wife, following a very convivial pre-Christmas party at a Sioux Falls hotel, shot and wounded one of the arresting officers. She herself was arrested, tried and found guilty of shooting with intent to kill. On appeal she questions the instruction to the jury with regard to the law on defending the persоn of another against attack, she objects to refusal of an instruction on simple assault and she alleges insufficient evidence to support the verdict.
Defendant, Roxanna K. Grimes, had spent more than six hours at the Sioux Falls Downtown Holiday Inn attending a Christmas party hеld for the benefit of labor union officials and their staffs on December 12, 1973. At that time she was a secretary employed at the Sioux Falls Labor Temple and her husband, Raymond Grimes, who was employed by Laborers’ Local 352, had his offices there also. By all accounts there was a large amount of alcohol consumed by the guests that day and Defendant is estimated to have imbibed as few as five or six and as many as twenty-five drinks. Sometime after nine in the evening Mr. and Mrs. Grimes apparently discovered that the car keys for the vehicle Mrs. Grimes was to drive were missing and they went in search of an acquaintance who had borrowed them earlier in the day. Having left the hotel‘s first floor area where their private party was being held, they went up to the Sattellite Bar on the top floor. While on the toр floor Mrs. Grimes behaved in too spirited a fashion and Officer James McKelvey of the Sioux
Defendant was arrested and charged with disturbing the peace, resisting process and shooting with intent to kill. The complaint which this appeal concerns was dated December 13, 1973, and charges Defendant with “shooting with intent to kill, in violation of the provisions of
On appeal Defendant raised four issues. They deal with
- thе standard to be used in justifying a wife‘s conduct in defense of her husband;
- the possibility of Instruction #19 on the standard being confusing and inconsistent;
- the omission of a requested instruction on the lesser included offense of simple assault and
- lack of sufficient evidence to support thе finding of shooting with intent to kill Officer Gulickson.
We find the first, second and fourth objections raised above to be without merit. We also find that the trial court erred in refusing the defendant‘s request for an instruction on the lesser included offense of simple assault, but in view of the fact that Defеndant Grimes suffered no harm from the error we affirm the decision of the lower court.
Our statute makes no distinction among those allowed to defend themselves or to come to the defense of another, and it assigns no exclusive right or privilege in the defense of another to spouses or other relatives nor does it forbid the defense of unrelated friends or total strangers.
“To use or attempt or offer to use force or violence upon or toward the person of another is not unlawful when committed either by the рarty about to be injured, or by any other person in his aid or defense, in preventing or attempting to prevent an offense against his person or any trespass or other unlawful interference with real or personal property in his lawful possession; provided thе force or violence used is not more than sufficient to prevent such offense.” [emphasis added]
Thus a wife, such as Roxanna Grimes in this case, is entitled to employ force or violence not more than sufficient to ward off an offense against the person of her husband should that offense or assault be unlawful. The same would hold true were she attempt-
Instruction 19, after restating in its first paragraph the law set out in
“Where an assault is made with only the hands and fists but with such force and in such manner as is likely to produce great bodily injury, the spouse of the person attacked may lawfully resist the attack with whatever force is reasonably and apparently necessary.
“Where an assault with the fists or hands, or by means not likely to produce great bodily injury, is being made on a person, but without intent to kill or do great bodily harm, and if the assault is not likely to produce great bodily injury, and if the spouse of the person being attacked is not deceived as to the character of such an assault, she is not justified in using a deadly weapon in self-defense.”
Appellant contends that the Instruction, taken as a whole, is confusing. A careful reading of all three paragraphs will show that there is no inconsistency and that the second and third paragraphs merely clarify the right of one to come to the defense of another and set out the appropriate force to be used or not to be used depending upon the nature of the attack. Instruction 19 is a correct statement of the law, is not in and of itself confusing, and was properly given.
The court gave Instruction #12 to the jury, which reads in part:
“The offense of shooting with intent to kill, with
which Roxanna Grimes is charged in the Information, necessarily includes the lesser offenses of:
- Assault with dangerous weapon with intent to injure.
- Assault and battery.
- Gross injury to another.
- Disturbing the peace.”
Defendant had requested an instruction which read in part:
“The offense of shooting with intent to kill, with which the defendant is charged in the information, necessarily includes the lesser offenses of:
* * * * * *
(4) Also included offense is assault, which is any willful and unlawful attempt or offer, with force or violence, to do corporal hurt to another.”
“The jury may find the dеfendant guilty of any offense, the commission of which is necessarily included in that with which he is charged in the indictment or information, or of an attempt to commit the offense charged.”
With regard to the case before us this statute would mean that the jury could have found Defendant guilty only of simple assault if simple assault is a lesser offense included in
“*** the man who commits the crime of an assault and battery with intent to kill ex necessitate has also committed the lesser offenses of an assault, assault and battery, and an assault with intent to do bodily harm, and when charged with the higher might be convicted of either of the lower. *** It therefore seems to be the settled law that a defendant tried on indictment for assault and battery with intent to kill, may be convicted either of the crime charged or of an assault or assault and battery with intent to do bodily harm, or for assault and battery, or for a simple assault.”
This was further clarified in Territory v. Conrad, 1877, 1 Dak. 363, 46 N.W. 605, where Mr. Chief Justice Shannon, speaking for the Supreme Court of Dakota, said: “[t]his court accordingly held, at the January term, 1876, in the case of People v. Odell * * * on an indictment for shooting with a shot gun, with intent to kill, that a defendant ‘may be convicted either of the crime charged, or of an assault, or assault and battery, with intent to do bodily harm, or for assault and battery, or for a simple assault‘.”
In an Ohio case, State v. Deboard, 1962, 116 Ohio App. 108, 187 N.E.2d 83, defense counsеl complained of the court‘s giving instructions on lesser included offenses of assault, assault with a dangerous weapon, and pointing firearms on a charge of maliciously shooting with intent to kill or wound. The Ohio Court of Appeals said:
“We feel that the trial judge was justified in charging on the three lesser included offenses, in view of the facts in this case. Not only was he justified but under a duty so to charge. Had he not so charged it would have been tantamount to a directed verdict of not guilty of the lesser included offenses upon which he did not charge.”
While we do not agree that the trial judge in the case before us had a duty on his own motion so to charge, we are in agreement that he had a duty to give the instruction when it was supported by the evidence and when it was requested by Defendant in light
“* * * Under the law as established in this state it is incumbent upon the trial court to instruct the jury, if requested, upon a lesser offense included in the offense charged if the evidence warrants a conviction upon the included offense.” State v. Crofutt, 1955, 76 S.D. 77, 72 N.W.2d 435.
The trial court refused to give Defendant‘s requested instruction on simplе assault because it was his “belief that the only difference in the elements necessary to prove assault and assault and battery is that the assault culminates in a battery [and] it is undisputed there was a battery in this case and it would be impossible for the jury to find that there was not a battery.” A battery is defined in
Although we believe the trial court‘s refusal to give the requested instructiоn was error, it is also clear from the jury‘s verdict that Mrs. Grimes suffered no harm from the error. She was found guilty of the offense with which she was charged, shooting with intent to kill, and not of one of the lesser included offenses contained in the instructions. It appears that the jury was without reasonable doubt on the charge of shooting with intent to kill, which it could rightly have found from the evidence, and it has no need to find any lesser offense was committed even though by the court‘s instructions they had the opportunity to so find. Whether the jury had been offered an assault instruction apparently would not have been of consequence in light of the verdict. Since Defendant suffered no real harm from the error, the conviction on the charge of shooting with intent to kill is affirmed.
WOLLMAN, J., concurs specially.
WOLLMAN, Justice (concurring specially).
Although I agree that the conviction should be affirmed, I do not аgree that the trial court erred in refusing to give an instruction on simple assault. Even if the offense of simple assault is necessarily included within the offense of shooting with intent to kill, the evidence did not warrant a conviction on that lesser offense, and thus the trial court was correct in refusing to give the requested instruction. State v. Kapelino, 20 S.D. 591, 108 N.W. 335; State v. Crofutt, 76 S.D. 77, 72 N.W.2d 435; State v. O‘Connor, 86 S.D. 294, 194 N.W.2d 246.