State v. Wilding

AILSHIE, J. — June 12, 1935, a criminal complaint was filed in a justice court of Madison county, charging appellant with the commission of a criminal offense, in the following words and figures: “That George D. Wilding, of Madison County, Idaho, on the 12th day of June, 1935, at and in the County of Madison and State of Idaho, then and there being, did commit the crime of battery, committed as follows: That he, the said George D. Wilding, on the said 12th day of June, 1935, in the County of Madison and State of Idaho, did wilfully and unlawfully use force and violence upon the person of one Howard Eckersell by then and there wilfully and unlawfully striking and fighting him the said Howard Eckersell.” Appellant was tried in the justice court and convicted of the crime of battery. He then appealed to the district court *151 of Madison county. A trial in the district court resulted in appellant’s conviction of the crime of assault, whereupon judgment was entered 'imposing a fine and taxing costs in both the justice court and district court against defendant, from which he has appealed to this court. No question is raised here as to the sufficiency of the complaint with respect to charging the crime of battery. The decisive question presented on this appeal is: Is the complaint sufficient to support the conviction for an assault? As we understand the law on the subject, the charge that a man has committed a battery necessarily includes the charge that the battery was preceded by an assault, which culminated in the battery. There could be no battery without previous assault. Sec. 17-1201, I. C. A., defines assault as follows: “An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another”; and sec. 17-1203, defines a battery in these words: “A battery is any wilful and unlawful use of force or violence upon the person of another.” The complaint on which appellant was tried in this case charges appellant with committing the crime of battery as hereinabove set out. It will be seen from the complaint that it is charged that the battery was committed “by then and there wilfully and unlawfully striking and fighting him the said Howard Eekersell.” Now it is self-evident that appellant could not have “wilfully” struck Eekersell without making “an unlawful attempt” to do so. No battery could be committed without being preceded by an assault as defined by the statute. In other words, an assault is an inchoate battery. (Johnson v. Sampson, 167 Minn. 203, 208 N. W. 814, 46 A. L. R. 772.) In the third edition of Black’s Law Dictionary, under the definition of battery the following statement and citations are given: “The actual offer to use force to the injury of another person is assault; the use of it is battery, which always includes an assault; hence the two terms are commonly combined in the term ‘assault and battery.’ (McGlone v. Hauger, 56 Ind. App. 243, 104 N. E. 116, 121; Harris v. State, 15 *152 Old. Cr. 369, 177 Pac. 122,123; State v. Staw, 97 N. J. L. 349, 116 Atl. 425; State v. Lichter, 7 Boyce (Del.), 119, 102 Atl. 529, 530; Anderson v. Crawford, (C. C. A.) 265 Fed. 504, 506; Johnson v. Sampson, 167 Minn. 203, 208 N. W. 814, 815, 46 A. L. R. 772.) “As to acts constituting assault and battery, see Smith v. Kahn, (Sup.) 141 N. Y. Supp. 520; Timmons v. Kenrick, 53 Ind. App. 490, 102 N. E. 52; State v. Lehman, 131 Minn. 427, 155 N. W. 399, 400, Ann. Cas. 1917D, 615; State v. Stafford, 113 N. C. 635, 18 S. E. 256; Hively v. Higgs, 120 Or. 588, 253 Pac. 363, 365, 53 A. L. R. 1052; State v. Sudderth, 184 N. C. 753, 114 S. E. 828, 829, 27 A. L. R. 1180.” The complaint here admittedly charged the appellant with the commission of a battery. If it be true that a battery is merely the consummation or last end of a successful assault, then the complaint here charged the appellant as fully with the commission of an assault as it did with the commission of a battery; and defendant was certainly not misled or deceived by the language used in the complaint. We do not consider that the eases of Matter of McLeod, 23 Ida. 257, 128 Pac. 1106, 43 L. R. A., N. S., 813, State v. Crawford, 32 Ida. 165, 179 Pac. 511, and State v. Singh, 34 Ida. 742, 203 Pac. 1064, are in point in the case under consideration. In the McLeod case the complaint simply charged that the defendant “did then and there wilfully, unlawfully, feloniously and with malice aforethought, kill and murder one George Guay, a-human being.” He was convicted of “an assault with a deadly weapon. ’ ’ The court reversed the conviction on the ground that the crime of murder may be committed in a great variety of ways, and since he was not charged with having committed the offense with a deadly weapon, in violation of the statute, that he could not be convicted of the crime of assault with a deadly weapon, under sec. 6732, Rev. Codes (sec. 17-1206, I. C. A.). In State v. Singh, supra, the information charged defendant with “assault with intent to kill and murder one Parker Gundo, he the said defendant having the present ability so to do, by then and there striking, hitting and beating said Parker Gundo with a heavy stick or club.” The jury re *153 turned a verdict of “guilty of assault by means and force likely to produce great bodily harm.” The judgment was reversed on the same grounds and authority stated in the McLeod case, supra, saying: “The information not having charged the crime of assault with intent to commit murder by means and force likely to produce great bodily injury, the conviction cannot be upheld.” In the course of the discussion in that case the court stated that the means, by which the information alleged the assault was made, were not alleged to be such as would necessarily “produce great bodily harm.” In the case of State v. Crawford, supra, some discussion on this question appears in both the majority and dissenting opinions; nevertheless the case was not decided on that issue but was rather decided on the ground that the trial court had improperly sustained a demurrer to defendant’s plea of once in jeopardy. We are thoroughly convinced that a complaint, which charges a defendant with the commission of a battery, necessarily, and by its own terms, charges an assault committed in consummating the battery; and that, if the evidence justifies it, the jury may convict the defendant so charged of the crime of assault. Appellant has assigned as error the insufficiency of the evidence to support the verdict. While the evidence is conflicting, we are not prepared to say that it is insufficient to justify the jury in returning a verdict of conviction. It is evident from the verdict returned that the jury did not believe that appellant had committed a battery on the complaining witness. On the other hand, it is equally clear that the jury believed that appellant at least provoked a fight by the commission of an assault. Error is also assigned against the ruling of the court in permitting witnesses, Yernon Gillespie and Llewellyn Gillespie, to testify to the action of appellant in returning to or renewing the conflict after the first fight had been quelled. It is claimed by appellant that this evidence is too remote and is related to an independent transaction. *154 We are not able to agree with appellant in this respect, as it appears to have been really a mere continuation of the original controversy. It was a part of the res gestae. (Coffin v. Bradbury, 3 Ida. 770, 784, 35 Pac. 715, 95 Am. St. 37; Wilson v. St. Joe Boom Co., 34 Ida. 253, 264, 200 Pac. 884; Judd v. Oregon Short Line R. R. Co., 55 Ida. 461, 468, 44 Pac. (2d) 291; 101 A. L. R. 1202, note.) The judgment must be affirmed, and it is so ordered. Givens, C. J., and Budge., J., concur.