146 P. 750 | Utah | 1915
An “assault,” as defined by the statute (Comp. Laws 1907, section 4190), “is an unlawful attempt, coupled with a present ability to commit a violent injury on the person of another”; an “assault with a deadly weapon” (section 4195), “every person who, with intent to do bodily harm, and without just cause or excuse, or when no' considerable provocation appears, or when the circumstances show an abandoned or malignant heart, commits an assault upon the person of another, with a deadly weapon, instrument, or other thing, is punishable by imprisonment in the state prison,” etc. True it is that before one may properly be convicted of an offense all the essentials thereof must be found. And, to properly convict the accused of an assault with a deadly weapon, undoubtedly required a finding that the assault was made with a deadly weapon, with the intent to do' bodily harm, and without just cause or excuse, etc. A verdict of course, should not be open to doubtful meaning as to the offense of which the accused was found guilty. He, let it be conceded, is entitled to have such doubt, if any there be, resolved in his favor. And if on this verdict it should not be certain as to whether the defendant was found guilty of an assault, or of an assault with a deadly weapon, he is entitled to have the uncertainty resolved in his favor. In ascertaining what the jury intended and found, the language used in the verdict should be given its fair and obvious meaning. The verdict is, guilty of an “assault with a deadly weapon as charged in the information.” That is, the defendant unlawfully attempted, coupled with a present ability, and with a deadly weapon, to commit a violent injury “as charged in the information.” How was it charged? in the first count, that the defendant unlawfully,' willfully, feloniously, deliberately, pre-meditatedly, with malice aforethought, and with the specific intent to take the life of the person named in the informa
The alleged assault grew out of a controversy between the defendant and Regis over a strike in Bingham. The defendant, at that place, was engaged in the butcher business, and was not in sympathy with the strike. Regis, who had been in'the employ of a mining company involved in the strike, was a participant in the strike and was in sympathy with it. It is 'unnecessary to go into the particulars of that. The State adduced evidence to show that the defendant, on the 6th of Mai’ch, 1913, as Regis was passing the defendant’s place of business, called to him, upbraided him, struck him in the face, hit him on the head with a revolver, and shot him in the neck, inflicting a serious wound; and that Regis was unarmed and had done nothing to provoke the assault. The defense was self-defense. To support it, the defendant adduced evidence to show that the reputation of Regis for peace and quietude was bad; that, because of defendant’s attitude towards the strike, Regis, on divers occasions prior to the assault, threatened to drive him out of Bingham, to take his life, “fill him
The court, on the defendant’s theory, charged with respect to the law of self-defense. In that connection the court charged: ,
“You are instructed that ‘great bodily harm’ means something more than injuries that ordinarily result from a battery inflicted by the hand or fist without a weapon or other instrument calculated to inflict a serious injury. ’ ’
“Q. You remember this man Kakarikos (the defendant) drawing a knife, or pulling a gun on Primp as ? A. No, never, Q. You don’t know about that? A. No, sir. Q. Weren’t you yourself and Kakarikos both engaged in that trouble with Primpas? A. No, sir; it was some other people in the old country. Q. Didn’t you yourself go to jail on account of*478 that? A. No, sir; never. If you show me anybody that put me in jail, I would give a thousand dollars. ,Q. Do you know Tom Alexandras? A. Yes. Q. Did you ever know of Kaka-rikos having any trouble with Tom Alexandras? A. No, sir. ’ ’
Of course, the testimony was incompetent. The witness had testified to nothing, either on direct or cross-examination, to render such inquiries pertinent. Certainly, it ought to be conceded that the testimony of the witness on direct examination as to the bad reputation of Regis and the threats made by him gave the prosecution no license, on cross-examination, to inquire of the witness if he did not also know something bad of the defendant, pulling guns and knives on others. But there was no objection to this on the part of the defendant. He, however, requested the court té charge:
“Certain questions were asked some of the witnesses relative to the defendant drawing a gun, and drawing a knife on other persons previous to the 6th of March, 3913. You are instructed that there is absolutely no' evidence of any such I an occurrence, and you are not to infer by reason of such I questions having been asked that any such occurrence or I transaction took place.” I
Complaint is made of the court’s refusal to give it. True,! as stated in the request, there was no evidence ‘ ‘ of any such I occurrences.” Though the questions propounded were an-1 swered in the negative and in favor of the defendant, still, I fearful that the jury, from the mere asking of the questions,! might be influenced to draw inferences that the defendant,! might have been guilty of such acts, the defendant, asl is apparent, asked the request to prevent the jury draw-1 ing any such inference. The subject-matter inquired into I by the State being, on the record, itself, incompetent and! not pertinent, the court, under the circumstances, could prop-1 erly have given the request. On the other hand, the defend-1 ant, apparently willing that his conduct in such particulars I be inquired into, permitted the inquiry without objection.! Because of that, let it be assumed, he was not entitled to have! the testimony stricken; and, as it was in his favor, he did not perhaps wish it stricken. Still, if the character of the in
“Q. Did you, at any later date, secure possession of any weapon of the defendant? A. Yes, sir. Q. How long was it after the shooting? A. Why, it was the 4th or 5th of Apri . the beginning of April. (The alleged assault was committed the 6th of March.) Q. What were the circumstances under which you secured possession of this weapon? A. I had a warrant for his arrest for threatening to kill. Q. Some other ease? A. Some other ease. Q. Go ahead. Did you make a search of him at that time? A. Yes, sir.”
Counsel for defendant, finally awaking to the situation, objected to this “as irrelevant and immaterial,” and inquired:
“What is the purpose of this? The Assistant District Attorney: We are going to identify this weapon. (After some colloquy between counsel and the court) Counsel for Defendant: I object to that way of proving it. I don’t think this evidence is competent. The Court: This would not be competent unless it can be connected. There must be sufficient to submit to the jury for them to pass on. Counsel for the Defendant: We will admit that is the gun with which the shooting took place, and that it was” the defendant’s gun. The assistant district attorney then further inquired of the witness: “Q. At the time you secured possession of this gun of the defendant, did you have any conversation with him relative to what he had done with the gun after the shooting?”. Here, further objections and colloquies followed. The witness an-, swered: “A. Not at that time,” and that he then only*481 “asked Mm if that is the gun he done the shooting with,” and that the defendant ‘ ‘ admitted that it was. ’ ’
Now, in his closing argument, the assistant district attorney argued that the defendant had also been arrested for an offense other than that for wMch he was on trial. Thereupon counsel for defendant objected, and, calling the reporter, stated:
‘ ‘ I wish the record to show that counsel in his closing argument states to' the jury that the defendant was arrested after the charge upon which he is being tried, arrested for an assault of some kind, and that a gun was taken from him at that time by Sorenson, ’ ’ the officer. " ‘ ‘ Counsel excepts to the remark before the jury. There is no evidence before the jury upon which to base it and it is wholly false, and requests the court at this time to instruct the jury to disregard any such statement.' The Assistant District Attorney: I would ask, so that the recollection may be clear upon it, may be no question, I would ask that the stenographer turn to the testimony of Mr. Sorenson, his direct examination, and see just what the testimony was that is still in the record there. ’ ’
Thereupon the stenographer read from his notes the testimony of the officer that about a month after the alleged assault he “had a warrant for his arrest for threatening to kill. Q. Some other case? A. Some other ease.” At the conclusion of that, counsel for defendant:
“Was there any evidence there that he was arrested? The Assistant District Attorney: My switching, criss-crossing friend— Counsel for Defendant: I ask the court for an instruction that there is no evidence before this jury of any other arrest; no evidence that the gun was taken from his person. The Court: I think it is a question of fact that the court will not interfere with; the jury may judge from the evidence under the usual instructions as to reasonable inferences as well as express statements. Counsel for Defendant: Your honor will save me an exception?' The Court: Yes, you may have an exception. The Assistant District Attorney (addressing counsel for defendant) : Have you finished? Counsel for Defendant: I have made my record. The Assistant*482 District Attorney (resuming his argument to the jury) : So, gentlemen, as I was saying, at the time my distinguished friend interrupted me with his usual accuracy, that Regis, it is not shown from the evidence, was ever gone after by any officer either before or after this incident, who had a warrant for his arrest for an assault with a deadly weapon or any other kind of violent assault. Counsel for Defendant: I except to that statement because there is no evidence what the warrant was for. The Assistant District Attorney: You don’t hear well, do you? Counsel for Defendant: Yes, I hear well and understand perfectly.”
There the incident closed, the assistant district attorney resuming and concluding his argument without further ruling from the court. Complaint is made that the district attorney, under the claim “to identify the weapon,” was permitted to show that the officer, about a month after the defendant’s arrest for the offense for which he was tried, “had a warrant for his arrest for threatening to Mil, in some other case,” and then, over the defendant’s objections, was permitted to argue that the defendant was arrested for some other offense, “threatening to kill” with a deadly weapon, which was then taken from him, and to compare the conduct of the defendant in such respect with that of Regis. We, on the record, are asked to hold this was justified, or, at most, was not prejudicial. We can do neither.
Of course, it was proper to identify the weapon with which the defendant did the shooting, to show what he thereafter did with it, and, in that connection, what, if anything, was stated or admitted by him concerning all such matters. But that readily could have been shown without the unnecessary circumlocution, “What were the circumstances under which you secured possession of this weapon ? ’ ’ and the irresponsive and harmful answer of the officer: “I had a warrant for his arrest for threatening to kill. Q. Some other case? A. Some other ease.” Upon inquiry as to the “purpose of this” and of the further question, “Did you make a search of him at that time?’1’ the assistant district attorney replied, “To identify the weapon.” The State urges the argument to the jury was justifiable because that testimony came in without
We think the ruling wrong and prejudicial. 12 Cyc. 574, and cases there cited; People v. Vailiere, 127 Cal. 65; 59 Pac. 295; People v. Smith, 121 Cal. 355; 53 Pac. 802; State v. Welch, 22 Mont. 92; 55 Pac. 927; State v. Helm, 92 Iowa 540; 61 N. W. 246; Magnuson v. State, 13 Ind. App. 303; 41 N. E. 545; Baughman v. State, 49 Tex. Cr. R. 33; 90 S. W. 166; Miles v. State (Tex. Cr. App.) 65 S. W. 912; Johnson v. State, 46 Tex. Cr. R. 291; 81 S. W. 945.
For this reason the judgment must be reversed and the case remanded for a new trial. Such is the order.
“You are instructed that, under the instructions of the court and the evidence given in the case, if you find that the defendant was justified in assaulting the witness Regis, then your verdict must be not guilty.”
And, in that connection, further charged:
“You are instructed that if you believe from the evidence that the defendant with a pistol willfully shot Regis, as charged in the information, then, before such act can be justified on the ground of self-defense, it must appear to the reasonable satisfaction of the jury from the whole of the evidence'that the defendant at the time of shooting had reasonable cause to believe, and did believe, that Regis was then about to kill the defendant, or do' him great bodily harm, and that the defendant had reasonable cause to believe, and did believe, that there was immediate danger of such design on the part of Regis being accomplished, and that the defendant did in fact shoot Regis for the purpose of preventing the harm so apprehended.”
The charge that, “if you find the defendant was justified in assaulting the witness Regis, then your verdict must be not guilty,” does not fairly imply that they may find him not guilty, if they, upon all the evidence, have but a reasonable doubt as to whether he was or was not justified. Charging that if they believed that the defendant “willfully shot Regis,” as charged in the information, “then, before such act can be justified on the ground of self-defense, it must appear to the reasonable satisfaction of 'the jury, from the whole of the evidence, that the defendant” was justified, stating the particulars constituting justification, required the jury, if they would acquit on the issue ■ of self-defense, to reach the conclusion, upon the whole evidence, to their “reasonable satisfaction, ’ ’ that the defendant was justified. That is but equivalent to the thought theretofore expressed that, to so acquit, the jury, upon the whole evidence, were required to find that the defendant was justified, and is not equivalent