We think that each and every element here mentioned — and of course much more — is included in the charge made in the amended information filed in this case. Chandler v. State, supra, Dotson v. State, 14 Okla. Cr. 50, 166 P. 902. It is further contended that the information does not properly contain and should not be considered as containing the charge of aggravated assault mentioned in § 9-210 Wyo. Comp. Stat. 1945, which defines aggravated assault and battery as follows: "If any person shall unlawfully and maliciously inflict upon another person, either with or without any weapon or instrument, any grievous bodily harm, or shall unlawfully and maliciously cut, stab or wound any other person, the person so offending shall be fined" etc. While no specific mention of serious bodily injury is made in the amended information, the charge of aggravated assault and battery is included as a lesser offense in the charge contained therein.
Territory v. Dooley, (Mont.) 1 P. 747; Suitor v. State, (Okla.) 118 P. 412; Sanders v. State, (Okla.) 162 P. 676; Dotson v. State, (Okla.) 166 P. 902. The error complained of was prejudicial to defendant, and the cause should be remanded for a new trial.
The result thus reached harmonizes with what has heretofore been said by this court in Brantley v. State, 9 Wyo. 102, 61 P. 139. Substantially reaching the same conclusion is the case of Dotson v. State, 14 Okla. Cr. 50, 166 P. 902. There the defendant was tried on a charge of assault with intent to kill, and convicted of assault with a sharp and dangerous weapon, with intent to do bodily harm.
To hold as the City posits would simply be inconsistent with fundamental principles of the criminal justice system as set out in an expansive body of case law spanning back to the earliest days of our statehood. See State v. Harsted, 66 Wash. 158, 163, 119 P. 24 (1911) ("The duty always rests upon the State of satisfying the minds of the jury beyond a reasonable doubt of the guilt of the accused"); see also State v. Dotson, 97 Wash. 607, 609, 166 P. 769 (1917) ("Every essential element of the offense charged must be proved, and it must be shown beyond a reasonable doubt that the offense was committed by the defendant.").
In our opinion the information is sufficient to charge an offense as defined by section 1756, C.S. 1921, and the included offense of assault with a dangerous weapon as defined by section 1764, Id. See Clemons v. State, 8 Okla. Cr. 452, 128 P. 739; Nichols v. State, 10 Okla. Cr. 247, 135 P. 1071; Dotson v. State, 14 Okla. Cr. 50, 166 P. 902; Campbell v. State, 14 Okla. Cr. 319, 170 P. 915. The means prescribed in section 1756, Id., and section 1764, Id., by which the offense may be committed, are in substance identical, and the material difference arises only in the punishment prescribed.
It is well established in this jurisdiction that a judgment of conviction will not be reversed because of the insufficiency of the evidence, where the evidence is conflicting, if there is evidence in the record, apparently credible and competent, from which the jury could reasonably and rationally conclude that the defendant was guilty of the crime charged. High v. State, 9 Okla. Cr. 523, 132 P. 509; Curry v. State, 9 Okla. Cr. 38, 130 P. 513; Dotson v. State, 14 Okla. Cr. 50, 166 P. 902; Prather v. State, 14 Okla. Cr. 327, 170 P. 1176. Next it is contended that the information is insufficient to charge the crime of robbery.