Opinion
Rehearing Denied July 22, 1975.
Page 1115
J. D. MacFarlane, Atty. Gen., Jean E. Dubofsky, Deputy Atty. Gen., E. Ronald Beeks, Asst. Atty. Gen., Denver, for plaintiff-appealee.
Rollie R. Rogers, Colo. State Public Defender, Lawrence J. Schulman, Deputy State Public Defender, Denver, for defendant-appellant.
VAN CISE, Judge.
Defendant Winn was convicted of two counts of first degree assault in violation of s 18--3--202(1)(a), C.R.S.1973 (1971 Perm.Supp., C.R.S.1963, 40--3--202(1)(a)). He was sentenced to the state reformatory at Buena Vista for an indeterminate period not to exceed 15 years on each count, to run concurrently, with credit for time spent in custody. Winn seeks reversal, contending that prejudicial error occurred in connection with certain jury instructions. We affirm.
The charges arose from a shooting incident at a pool hall in Denver on the night of October 19--20, 1973. During an extended argument with one Ben Parrish, the defendant fired a gun at him. The bullet broke Parrish's elbow and also hit a bystander, Richard Jones, in the abdomen.
The defense was based on the theory of self-defense. Defendant and his witnesses testified that Parrish had a gun and was pulling it out just before the defendant fired. The People's witnesses all sworn that Parrish did not have a gun at any time during the incident. The jury resolved the conflict in favor of the People. I.
In the first count of the information, it was alleged that 'Winn, with intent to cause serious bodily injury to another person, did . . . cause serious injury to Richard Jones by means of a deadly weapon . . ..' The second count was similarly worded except for the substitution of the name of Parrish for Jones. The parties admit that the charged offense of first degree assault includes second degree assault as defined in s 18--3--203(1)(b), C.R.S.1973, the distinction being whether 'serious bodily injury' or merely 'bodily injury' was intentionally inflicted.
The jury was instructed on the elements of first degree assault (Colorado Jury Instructions (Criminal) 10:1 (C.J.I. Crim.), based on s 18--3--202(1)(a), C.R.S.1973), on the meaning of 'serious bodily injury' and 'bodily injury' (C.J.I. Crim. 5:1 and 5(24) and 5(6), based on s 18--1--901(3)(p) and (c), C.R.S.1973), on requirements of criminal liability in specific intent crimes (C.J.I. Crim. 6:2, based on s 18--1--503, C.R.S.1973), and on transferability of specific intent against Parrish to the bystander Jones. In addition, a lesser included offense instruction was given on possible second degree assault as to Parrish (C.J.I. Crim. 36:6, based on s 18--1--408(5)(c) and (6), C.R.S.1973), followed by an instruction on the elements of second degree assault with a deadly weapon (C.J.I. Crim. 10:7, based on s 18--3--203(1)(b), C.R.S.1973).
Defendant contends that, as to the bystander Jones, it was error not to instruct the jury on second degree assault as a lesser included offense of first degree assault. In support of this contention, he claims that the jury should have been allowed to determine whether Jones incurred 'serious bodily injury' as opposed to merely 'bodily injury.'
The evidence established that Jones was hospitalized, endured a two-hour operation, and for four months had the contents of his colon discharged by a tube through his stomach wall. Such injuries could not rationally by characterized as less than serious. Section 18--1--901(3)(p), C.R.S.1973. When, as here, there is no evidence by which the jury could be justified in returning a verdict of second degree assault, based on merely 'bodily injury' as contrasted to 'serious bodily injury,' no such instruction should be given. People v. Thompson, Colo., 529 P.2d 1314; McKenna v. People, 124 Colo. 112, 235 P.2d 351; s 18--1--408(6), C.R.S.1973. Additionally the instructions given benefited defendant in that, had the jury concluded that Winn's intent was merely to inflict 'bodily injury,' and not 'serious bodily injury' on Parrish, it could have acquitted Winn on the count as to Jones; whereas, on the same conclusion, but with a lesser included offense instruction, it could have found him guilty of second degree assault. We find no reversible error in the court's refusal to give this lesser included offense instruction.
II.
Defendant further contends that the court should have defined the extent or type of provocation or initial agression which would negate defendant's justification of his later use of physical force. The Court gave an instruction on self-defense in the language of C.J.I. Crim. 7:16, embodying the gist of s 18--1--704(1), C.R.S.1973. In another instruction, the jury was told that the burden was on the People to prove beyond a reasonable doubt the guilt of the defendant as to the issue of self-defense. C.J.I. Crim. 7:1, s 18--1--407(2), C.R.S.1973. The court also gave the following instruction 14, extracted from s 18--1--704(3)(a) and (b), C.R.S.1973:
'You are instructed that a person is not justified in using physical force if: (a) With intent to cause physical injury or death to another person, he provoked the use of unlawful physical force by that other person; or (b) He was the initial aggressor.' Defendant does not quarrel with the basic proposition embodied in this instruction. However, he urges that, taken in the light most favorable to the People, the evidence shows a continuing argument covering a period of several hours, the only act of physical provocation or aggression was that perpetrated by the victim Parrish upon the defendant, and the acts attributed to the defendant which might be considered provocation or aggression were, at most, verbal in nature. He asserts that, since provocation could be anything from mere unpleasant words to use of force, the jury should have been instructed to consider the degree of provocation involved.
In support of his position, he relies mainly on Goldblatt v. Chase, 121 Colo. 355, 216 P.2d 435, and Hernandez v. People, 156 Colo. 23, 396 P.2d 952. Both were assault and battery cases. In Goldblatt, it was held to be error not to have told the jury 'that mere words alone, unless accompanied by an actual act of hostility would not justify an assault.' In Hernandez, a conviction was reversed for the reason, among others, that the phrase 'no considerable provocation then and there appearing' was not defined or explained.
However, Hernandez has been impliedly overruled as to this issue by Arevalos v. People, 162 Colo. 408, 426 P.2d 558, an assault with deadly weapon case in which the court stated:
'The statute involved in the charge against the defendant involves proof that no 'considerable provocation' was present as an inducement to the assault. Counsel urges that the instruction given by the trial court failed to sufficiently define the words 'considerable' and 'provocation.' It is sufficient to say that the term 'considerable provocation' was sufficiently defined as a legal phrase in the context of the statute, and the court did not err in refusing to define each word separately.'
Further, in 1974, in People v. Edwards, Colo., 520 P.2d 1041, another assault with deadly weapon case under the former statute, C.R.S.1963, 40--2--34, the court specifically adhered to its ruling in Arevalos.
The defendant is correct that ordinarily mere words are not such provocation as would eliminate one's right of self-defense. However, in view of the context in which 'provoked' is used (instruction 14 requires that the provocation be 'with intent to cause physical injury or death'), the idea that mere words are insufficient to preclude that availability of self-defense is effectively communicated, albeit implicitly.
Further, Crim.P. 30 requires that a 'party who desires instructions shall tender his proposed instructions to the court.' Here, although Winn objected to the failure of instruction 14 to include a clarification of the meaning of the word 'provoked,' he did not offer any alternate instruction which would have set forth his interpretation of the applicable law. He did not even question, at the trial, the failure to define the term 'initial aggressor.'
It is the responsibility of a party to submit an instruction if he believes circumstances warrant, and, having failed to do so, the party cannot afterwards complain that such instruction was not given. See Rhodus v. People, 158 Colo. 264, 406 P.2d 679. Since Winn did not comply with Crim.P. 30 in this regard, and since there is here no manifest prejudice amounting to plain error under Crim.P. 52(b), there is no reversible error. See People v. Bercillio, 179 Colo. 383, 500 P.2d 975; Fresquez v. People, 178 Colo. 220, 497 P.2d 1246; Arellano v. People, 177 Colo. 286, 493 P.2d 1362.
Judgment affirmed.
RULAND and STERNBERG, JJ., concur.