Summary
In State v. Spiegel, 39 Wyo. 309, 270 P. 1064, 64 A. L. R. 289, there was presented an attack on an information made using the disjunctive "or."
Summary of this case from Nelson v. StateOpinion
No. 1508
October 16, 1928
APPEAL from District Court, Niobrara County, CYRUS O. BROWN, Judge.
Edwin L. Brown, for appellant.
The charge is in the disjunctive; a charge that one touched another in a rude, insolent or angry manner is a nullity. Slauer v. Territory, 5 Okla. 506, 49 P. 109; proof of acts on the 4th of February does not sustain a charge of offense committed on the 5th of February. State v. Tobin, 31 Wyo. 355. Objections were made and exceptions reserved. The defendant stood in loco parentis to the complaining witness, Charles Bailey. It was shown that complaining witness disrupted the discipline of the Spiegel household and deserved correction by the use of reasonable force and chastisement. Defendant had a legal right to use some force for this purpose. State v. Vanvactor, 113 Ind. 276; State v. Jones, 95 N.C. 588. A very large margin must be left to the judgment of the parent; Bishop Criminal Law, 9th Ed., Vol. 1, 627. The Statute, Section 7074 C.S., defining the offense requires that the act be unlawful. Defendant had a lawful right in the present case to correct the complaining witness. Burton v. State, 146 S.W. 186; Biglow v. Co., (Mo.) 129 S.W. 982; Dove v. State, 37 Ark. 261; State v. York, (Del.) 5 Har. 493; State v. Ryan, 12 Nev. 401; Com. v. Wilson, 1 Phila. 80; Lucas v. State, 26 S.W. 213. The judgment is contrary to law and should be reversed.
W.O. Wilson, Attorney General, Jas. A. Greenwood, Deputy Attorney General, for respondent.
It is true that a person in loco parentis has a right to punish a child, the same as a natural parent, but moderation must be used, and cruel or unusual punishment will be treated as an assault. 2 R.C.L. 542; 21 L.R.A. (N.S.) 216 and note. Defendant waived objection to defects in the information by not filing a motion to quash. 7483 C. S. The defect if any was waived. 7487 C.S. The offense was charged in the words of the Statute, Bryant v. State, 7 Wyo. 314; Tway v. State, 50 P. 188; and Ross v. State, 16 Wyo. 294. The defendant understood the information sufficiently to plead to it and was not prejudiced. 7462 C.S., 29 Wyo. 287. A presumption of criminal intention may arise from proof of an unlawful act. 16 C.J. 81. The point raised as to the day of the offense and the information is without merit. 7462 C.S. White v. State, 23 Wyo. 130. 14 R.C.L. 180. 31 C.J. 681. Ealum v. State, 239 P. 933. No exceptions were taken to the instructions of the Court. The jury apparently found that the defendant used more force than was reasonable under the circumstances, and such finding should not be set aside on appeal, there being evidence to sustain the verdict and judgment.
The defendant was convicted of an assault and battery on one Charlie Bailey, and from that conviction and sentence thereon he has appealed. The only points argued are those hereinafter mentioned.
1. The information charges the defendant with having committed the assault and battery on February 5, 1926, while the evidence showed it to have been committed on February 4, 1926, and it is claimed that this constitutes a variance and that the evidence should have been excluded. There is no merit to this contention. The precise time at which the offense is charged to have been committed is not material unless time is of the essence or gist thereof. 14 R.C.L. 180, 31 C.J. 881. The syllabus in Ealum v. State, (Okla.Crim.) 239 P. 933, is as follows:
"Unless time is a material ingredient of the offense, the precise time at which the offense was committed need not be stated in an indictment or information, and if stated, a variance between the proof and the allegation as to the date is not material so long as the crime is proven within three years prior to the initiation of the prosecution."
2. The information in this case charged that the defendant "unlawfully and in a rude, insolent or angry manner" touched Charlie Bailey. Objection is herein made to the disjunctive form of the charge. A charge in that form is, in the absence of a statute permitting it, generally condemned by the courts. 31 C.J. 707; note 51 L.R.A. (N.S.) 133. Some of the authorities hold an information in that form to be fatally defective, others hold it subject to a motion to quash. If the words describing the character of the act are synonymous, the objection does not lie. 31 C.J. 707; State v. Bragg, (Mo.App.) 220 S.W. 25. The words "rude, insolent and angry" are not entirely synonymous, and yet we cannot say that to characterize an assault by these words, stated disjunctively, would be the equivalent of stating no offense at all. Section 7483, W.C.S. 1920, provides that "a motion to quash may be made in all cases where there is a defect apparent upon the face of the record, including defects in form of the indictment or in the manner in which the offense is charged." We think that the most that can be said in this case is that the defect here complained of is one of those covered by this section of the statute; in other words that the information might have been subject to a motion to quash. No such motion was made in this case, and the defect was accordingly waived pursuant to Section 7487, W.C.S. 1920.
3. It is argued that the evidence is not sufficient to sustain the verdict and judgment, in view of the fact that the defendant stood in loco parentis to the prosecuting witness. Courts are agreed that since parents, or those standing in their place, are charged with the duty of educating their children and bringing them up in accordance with certain standards, they have the right to exercise such control and restraint and to adopt such disciplinary measures as will enable them to discharge their parental duty; that, accordingly, it is not an assault and battery for a parent, or one standing in such place, to strike a child in punishment for disobedience or other misconduct, but is in the exercise of a legal right in doing so. 2 R.C.L. 541. Courts are not agreed as to the extent of punishment. In 2 R.C.L. 542, the rule is stated as follows:
"The decided preponderance of authority, however, is that a parent in punishing his children must act in good faith with parental affection, must not exceed the bounds of moderation and must not be cruel or merciless, and that any act of punishment in excess of such limits is unlawful. * * * Whether in any case punishment exceeded the bounds referred to is a question of fact for the jury, and they may determine it from the injuries inflicted."
The punishment in the case at bar arose out of the fact that the prosecuting witness had a book on dancing, of which the defendant did not approve. The latter proceeded to destroy it, and the prosecuting witness told him that this was as good as stealing the book. While, doubtless, the defendant had a right to punish the prosecuting witness for such remark, there is, we think, sufficient evidence in the record to leave it to the jury to determine as to whether or not the punishment was in the exercise of parental duty and affection or whether it exceeded the bounds of moderation. The testimony indicates that the defendant struck the prosecuting witness with his fist; there is also testimony in the record that he used a stick of wood 18 inches long and 5 inches in diameter, and while it may not be true, as testified by the witnesses for the state, that he hit the prosecuting witness with it while the latter was sitting in a chair, still the use of it at all was a circumstance in determining the moderation in punishment or the want of it. The question of guilt was one peculiarly within the province of the jury, with which we cannot interfere. The intent to commit the offense might, of course, as already indicated, be gathered from the manner in which it was committed. The judgment is affirmed.
Affirmed.
KIMBALL and RINER, JJ., concur.