Opinion
No. 14,224.
Decided February 21, 1935.
Plaintiff in error was convicted of assault and battery.
Reversed. On Application for Supersedeas.
1. CRIMINAL LAW — Assault — Information. A criminal information charging only an assault with intent to do bodily harm does not include a battery, but does include a simple assault.
2. Justice. In criminal proceedings, substantial justice, if it can be ascertained, must always prevail.
3. Assault — Words and Phrases. An assault with a deadly weapon with intent to do bodily harm, is a high misdemeanor.
4. Penalties — Court Discretion. The penalty to be imposed upon a defendant who is convicted of a criminal offense, within the statutory limitations, is discretionary with the trial court.
5. Information — Service of Copy — Appeal and Error. In misdemeanor cases a defendant must be furnished with a copy of the information charging him with a crime upon his request therefore the request being made prior to waiver of arraignment or entry of a plea to the charge. Refusal to furnish such a copy when so requested constitutes reversible error.
6. Information — Service of Erroneous Copy — Appeal and Error. Where a defendant in a criminal case is served with a purported copy of the information variant in substantial particulars from the original filed in court, his motions to correct the error, presented in apt time, and upon discovery of the discrepancy, should be granted.
7. Information — Service of Erroneous Copy — Appeal and Error. Where a defendant in a criminal case is served with a purported copy of the information variant in substantial particulars from the original filed in court and proceeds to trial upon the justifiable assumption that the document served on him is a correct copy of the information upon which he is being tried, the appellate court on review being unable to say prejudice to his rights did not result, judgment of conviction is reversed.
Error to the District Court of Jefferson County, Hon. Samuel W. Johnson, Judge.
Mr. DE S. DE LAPPE, for plaintiff in error.
Mr. BYRON G. ROGERS, Attorney General, Mr. REID WILLIAMS, Assistant, for the people.
LANE, plaintiff in error, was defendant in a trial for assault in the district court of Jefferson county where the case was taken on a change of venue from Arapahoe county. A jury found him guilty of assault and battery, and on the verdict, the court sentenced him to a term of six months in jail. He assigns error to the judgment and reference will be made to him herein as defendant.
Of the many errors assigned, defendant relies mainly upon the refusal of the court to sustain his combined motions to set aside the verdict, grant a new trial, and in arrest of judgment, one of the grounds thereof being in substance, that he was served by the district attorney at the time of arraignment with a copy of an information materially different from the one on file with the court, and upon which practically the entire trial had proceeded before the difference was discovered by him. He asserts that in waiving the reading of the information at time of arraignment, and entering a plea of not guilty, he did so upon the assumption that the copy of the information served upon him shortly theretofore, was a true copy of the one on file with the court, all to his prejudice. Defendant says also that the court erred in overruling his supplemental motion for a new trial based in part on newly discovered evidence which it is claimed would affect the credibility of the complaining witness.
On February 2, 1937, in the district court of Arapahoe county, the district attorney filed the following information:
"Harry Behm, District Attorney within and for the First Judicial District of the State of Colorado, in the name and by the authority of the People of the State of Colorado, informs the court, that, on the 28th day of January, A. D. 1937, at the said County of Arapahoe, in the state of Colorado.
"Harvey Lane, with a deadly weapon, to-wit, brass knucks, which he the said Harvey Lane then and there had and held, then and there unlawfully, wilfully and maliciously did make an assault on one Harry G. Thomas, with intent to commit a bodily injury upon the person of the said Harry G. Thomas, no considerable provocation then and there showing an abandoned and malignant heart in him, the said Harvey Lane, and at said time and place did beat, strike, wound, and bruise the body of Harry G. Thomas, contrary to the form of the statute in such case made and provided and against the peace and dignity of the People of the State of Colorado."
Arraignment followed immediately, the record showing the following:
"And thereupon the said defendant Harvey Lane is arraigned, and this said information here read to him, and he is required to plead thereunto. Whereupon he answers and saith that he is not guilty in manner and form aforesaid, as in and by this said information he stands charged. And of this he puts himself upon the county, and the District Attorney does the like."
At the very time, and following the arraignment, defendant moved for a change of venue, which was granted, to the district court of Jefferson county where trial was had on March 17 and 18, 1937. Defendant contends, and his counsel so testified upon the trial, that on the morning of February 2, just prior to the arraignment, the district attorney handed defendant and his counsel a copy of the information which they understood was being filed. It is further claimed that having such copy, and being familiar with its contents and the charge therein made, counsel for defendant, in defendant's presence at the time of arraignment, waived the reading of the information and entered a plea of not guilty. The copy of the information so served is marked defendant's Exhibit 9, and is in the following words:
"Harry Behm, District Attorney within and for the First Judicial District of the State of Colorado, in the name and by the authority of the said People of the State of Colorado, informs the Court that, on the 28th day of January, A. D. 1937, at the said County of Arapahoe, Harvey Lane, with a deadly weapon, to-wit, brass knucks, which he the said Harvey Lane then and there had and held, then and there unlawfully, wilfully and maliciously did make an assault on one Harry G. Thomas with intent to commit a bodily injury upon the person of said Harry G. Thomas, no considerable provocation then and there appearing for such assault, and the circumstances thereof then and there showing an abandoned and malignant heart in him, the said Harvey Lane, contrary to the form of the statute in such case made and provided and against the peace and dignity of the People of the State of Colorado.
"Harry Behm, District Attorney
"By A. T. Monson, Deputy District Attorney."
It is clear from the wording of this latter copy, that defendant is charged with an aggravated assault and not with a battery. In this particular, it is materially different from the information on file under which defendant was convicted, in that that information charges both an aggravated assault and a battery.
No attack is made upon the information as filed, and it does not appear that it is open to a successful attack. It charges an assault with a deadly weapon with intent to commit bodily injury and alleges a battery in connection with the assault. While the entire record is not before us, and we are not advised as to the nature of the instructions, it does appear that the court withdrew the charge of assault with a deadly weapon from consideration by the jury, and it is claimed and not contradicted that the court instructed the jury that under the information, it could consider charge of assault and battery. That it did so consider the charge is evident from the verdict. The information as filed included assault and battery because averred. An information charging assault with intent to do bodily harm does not include a battery if such is not charged, but does include a simple assault, as such is necessarily a part of the aggravated assault. It is clear that under the copy of the information alleged to have been furnished defendant, a charge of assault and battery was not laid and the charge of assault with deadly weapon with intent to do great bodily harm, having been withdrawn from the consideration of the jury, defendant could not have been convicted of a higher degree of crime than that of simple assault.
[2-7] The uncontradicted facts, as they relate to all of the circumstances of the trial, present a novel but interesting situation, and on the whole our only problem on this review is to determine whether or not defendant could have been prejudiced under the circumstances. Substantial justice, if it can be ascertained, must always prevail. A review of the evidence herein discloses an altercation between the complaining witness and the defendant. As to which was the aggressor is in dispute, but we cannot overlook the charge made by the complaining witness that he was assaulted with a deadly weapon, namely, brass knucks. Such an assault if made with intent to do bodily harm, is a high misdemeanor. The complaining witness knew at the time of subscribing to the information, as well as he knew at any other time, whether or not this charge was true. Under examination upon the witness stand he first testified that defendant struck him with knucks, and then qualified this statement saying, "I couldn't say it was knucks; I don't know what it was." If he did not know what it was at the time of trial, certainly he did not know at the time he verified the information. That a fight ensued in which the complaining witness came out second best, is not disputed. He received a small cut over one eye which a physician testified was in the nature of a "gouge," and defendant testified that it was caused by his thumb nail when he struck at the complaining witness. We are reluctant to believe that the evidence in this case justified the imposition of the maximum penalty of six months in jail; however, the penalty is discretionary with the trial court within the statutory limitations. As stated heretofore, the circumstances of the proceedings are peculiar. Under our statute, in cases of this character the defendant shall, previous to arraignment, be furnished with a copy of the information if he or his counsel make a request therefor. This request must be made prior to a waiver of arraignment or entry of a plea to the charge. A refusal to furnish the copy when so requested constitutes reversible error if exception thereto is properly preserved. Such a request was not made by the defendant, and viewed in the light of fairness, and considering the undisputed facts, we cannot penalize him for such failure when he claims that he was furnished with a copy of an information by the district attorney, which he supposed was the one upon which he was to be tried. Assuming the truth of the claim, and it is not denied, defendant should not be prejudiced by his failure to do a useless thing, or for doing the thing that an ordinarily cautious person would have done under the circumstances. The copy of the information, defendant's Exhibit 9, is over the signature of the deputy district attorney.
It clearly is a carbon copy and it is stated thereon in handwriting that the original is verified. It is equally clear that it is not a copy of the original as set out in the record before us. The trial court held defendant to his plea to the information on file because the record disclosed such a plea on the reading of the information. Attached to defendant's motion to correct and amend the record, which the court denied, is the affidavit of one Abbott, the official court reporter who was present at the time of the arraignment. In this affidavit he states that he has searched his shorthand records of the proceedings of that day; that while he finds no notation concerning the proceedings in this particular case, he is certain that the defendant was called to the bar and that his counsel announced that he would waive, and did waive, the reading of the information and that defendant entered a plea of not guilty. Under such circumstances, if defendant did rely upon the copy furnished him, and so relying, prepared for a defense to the charge as made in the copy, such reliance was upon what appeared to be an official act of the district attorney and we are unable to see that he did other than the circumstances justified. A discovery of the variance between the original information on file and the copy furnished and relied upon by defendant was not made until the trial was nearing an end and after much of defendant's evidence was before the jury. Counsel for the people contend that they are unable to see wherein or whereby defendant was prejudiced. Without saying that we see wherein he was prejudiced, we can not with confidence say that such prejudice did not occur. That defendant was taken by surprise at a stage of the proceedings where it would have been difficult for him to change his defense to his benefit, cannot be seriously questioned. He promptly and in apt time called the discrepancy in the copies of the information as filed and served to the attention of the court, and to an adverse ruling on his motion saved his exception. He again presented the matter to the trial court in the subsequent motions heretofore mentioned and which we believe should have been granted. This being our conclusion, it is unnecessary to discuss other assigned errors.
The judgment is reversed and the cause remanded with directions to grant defendant another trial.
MR. JUSTICE HILLIARD and MR. JUSTICE BAKKE concur.
MR. CHIEF JUSTICE BURKE and MR. JUSTICE YOUNG concur in the conclusion.
MR. JUSTICE BOUCK and MR. JUSTICE KNOUS dissent.