Opinion
No. 36972.
Filed January 31, 1969.
Criminal Law: Trial. An instruction as to a lesser included offense is proper only when applicable to the evidence, and where there is no evidence that would justify a verdict of guilty of a lesser offense, no instruction need be given.
Appeal from the district court for Dodge County: ROBERT L. FLORY, Judge. Affirmed.
Yost Yost, for appellant.
Clarence A. H. Meyer, Attorney General, and Harold Mosher, for appellee.
Byron J. Norval, amicus curiae.
Heard before WHITE, C.J., SPENCER, BOSLAUGH, SMITH, McCOWN, and NEWTON, JJ., and SCHMIDT, District Judge.
Defendant was convicted pursuant to section 28-729.01, R. S. Supp., 1967, of unlawfully and feloniously assaulting a police officer with a dangerous weapon while the police officer was engaged in the performance of his duties. Defendant appeals this conviction and the subsequent conviction and sentencing as a habitual criminal.
Defendant seeks reversal of his conviction on three grounds: (1) The court erred in failing to instruct on the lesser and included offense of assault where the evidence conclusively showed the defendant to be intoxicated at the time of the assault; (2) there was no credible evidence to establish that defendant knew or should have known that one Officer Stack was in fact a police officer; and (3) the court erred in failing to instruct on the lesser and included offense of simple assault.
The evidence in this case is undisputed, no evidence having been offered by the defendant. Defendant was engaged in a fight wherein he had struck the first blow by slashing with a small knife the cheek of another, causing a wound that necessitated 20 stitches to close. After a short fight, two bystanders stopped the fight and were attempting to disarm defendant when two officers in civilian clothes arrived. The officers announced that they were police and ordered the defendant to drop the knife. The bystanders who were attempting to disarm defendant and the assembled spectators moved back from the scene, the defendant called one of the officers, Officer Stack, by name, then took a swipe at Officer Stack with the knife, attempted to kick him, and took a second swipe at him, whereupon both officers disarmed the defendant.
Defendant alleges that he was entitled to an instruction on a lesser charge of simple assault where the evidence shows that he was intoxicated at the time of the assault. The evidence regarding defendant's intoxication is that defendant had been intoxicated to the extent that he had a "little trouble walking" and his speech "wasn't very good" over 1 hour prior to the alleged assault. Approximately 1 hour before the assault, defendant had been beaten in a fist fight, recovered, dialed a telephone and talked with friends, and had not been seen by any one after being evicted from a bar some 45 minutes before he slashed the third party which led to the intervention by the police officers.
A portion of the rule with regard to intoxication as a defense or as reducing the degree of the crime requires that the intoxication be excessive to the extent of wholly depriving the defendant of reason. Tvrz v. State, 154 Neb. 641, 48 N.W.2d 761. Considering the evidence most favorable to defendant, the record establishes only that defendant had been drinking beer, was under the influence of alcohol, but had reasonable control of his faculties 1 hour prior to the incident. There was no basis for an instruction on intoxication. Defendant's allegation is without merit.
Defendant next alleges that the charge should have been dismissed because there was no credible evidence to establish that defendant knew or should have known that Officer Stack was in fact a police officer. It is unnecessary to reach the issue of whether knowledge that the victim is a police officer is an essential element of the crime charged. See, United States v. Lombardozzi, 335 F.2d 414, 10 A.L.R. 3d 826 (2d Cir., N.Y., 1964), cert. denied, 379 U.S. 914, 85 S.Ct. 261, 13 L.Ed.2d 185; United States v. Montanaro, 362 F.2d 527 (2d Cir., N.Y., 1966), cert. denied, 385 U.S. 920, 87 S.Ct. 233, 17 L.Ed. 2d 144; United States v. Wallace, 368 F.2d 537 (4th Cir., Va., 1966), cert. denied, 386 U.S. 976, 87 S.Ct. 1169, 18 L.Ed.2d 136; United States v. Heliczer, 373 F.2d 241 (2d Cir., N.Y., 1967), cert. denied, 388 U.S. 917, 87 S.Ct. 2133, 18 L.Ed.2d 1359. Any error is to the benefit of the defendant. Defendant was charged with knowledge and the jury was so instructed. The evidence regarding this allegation, which evidence is not contradicted, is that upon arriving at the scene, the officers announced once, if not twice, that they were police. The two men who were grappling with defendant withdrew and the crowd of spectators stepped back. Defendant paused and called Officer Stack by name before the assault. Further, the defendant had known Officer Stack when they were in high school and they had worked together on construction work. Certainly, there was credible evidence that defendant knew or should have known that he was assaulting a police officer.
Defendant's last assignment of error is the failure of the trial court to instruct on the offense of simple assault. Such an instruction is not mandatory where the evidence is conclusive of the guilt of the defendant. Mantell v. State, 141 Neb. 15, 2 N.W.2d 586; Moore v. State, 147 Neb. 390, 23 N.W.2d 552. Further, in Davis v. State, 116 Neb. 90, 215 N.W. 785, this court stated the general rule in the following language: "Such an instruction is proper only when applicable to the evidence and where the evidence would justify a verdict of guilty of the lesser offense. If the evidence is such as to warrant only a verdict of the greater offense, or one of not guilty, then it is not proper to give such an instruction." See, also, In re Application of Flanders, 119 Neb. 761, 230 N.W. 684; Olney v. State, 169 Neb. 717, 100 N.W.2d 838. The evidence in the present case is such that defendant is either guilty of the crime charged or not guilty. The trial court did not err in failing to instruct on the lesser offense.
The judgment of the district court is correct and is affirmed.
AFFIRMED.