Opinion
No. 20999.
Decided May 17, 1965.
Defendant was convicted of assault with a deadly weapon and brings error.
Reversed and Remanded.
1. CRIMINAL LAW — General Intent — Specific Intent — Distinction. In criminal law the distinction between a "general intent" and a "specific intent" is well recognized and of long standing.
2. Crime — Act — General Intent — Specific Intent. A given crime may consist of an act combined with a general intent, or, it may consist of an act combined with a specific intent, depending entirely upon the particular statute which defines the offense under consideration.
3. Crime — Statutory Definition — Specific Intent — Ingredient — Proof. Where the statute defining the crime includes a specific intent as an ingredient of its criminality, such specific intent is essential and must be established with the same certainty as any other material element of the crime.
4. ASSAULT AND BATTERY — Specific Intent — Necessary Element — Assault With Deadly Weapon. Specific intent to commit bodily injury upon the person of another is a necessary and essential element of the offense known as assault with a deadly weapon.
5. CRIMINAL LAW — Act — Specific Intent — General Malice — Criminal Intent — Sufficiency. Where a crime consists of an act combined with a specific intent mere general malice or criminal intent is insufficient, and the requisite specific intent must be shown as a matter of fact, either by direct or circumstantial evidence.
6. Intention — Presumption — Act — Specific Intent. The general rule that a criminal intention will be presumed from the commission of an unlawful act does not apply in a case where a crime consists of an act combined with a specific intent; and proof of the commission of the act does not warrant the presumption that accused had the requisite specific intent.
7. ASSAULT AND BATTERY — Appeal and Error — Specific Intent — Otherwise Covered. Trial court erred in refusing defendant's tendered instruction pertaining to specific intent as this essential and necessary ingredient of the crime of assault with a deadly weapon was not "otherwise covered" in its instructions.
Error to the District Court of Pueblo County, Hon. S. Philip Cabibi, Judge.
YAKLICH, DAVIS O'ROURKE, for plaintiff in error.
DUKE W. DUNBAR, Attorney General, FRANK E. HICKEY, Deputy, JOHN P. MOORE, Assistant for defendant in error.
ARMIJO was convicted by a jury of the crime commonly refereed to as assault with a deadly weapon, as such offense is defined in C.R.S. '53, 40-2-34. Thereafter Armijo was sentenced to a term of from two to five years in the State Penitentiary and by the present writ of error he seeks reversal of this judgment and sentence. As ground for reversal Armijo urges, inter alia, that the trial court erred in refusing an instruction which he tendered concerning specific intent. Our review of the record convinces us that the trial court committed error in this regard, and because of this error by the trial court the judgment must now be reversed.
As noted, Armijo tendered an instruction on specific intent on the trial court, the gist of the proposed instruction being that before the jury could convict him of assault with a deadly weapon, the jury had to be satisfied beyond a reasonable doubt that he had the specific intent to commit bodily injury upon the person of the alleged victim. The trial court denied to give this tendered instruction, the court being of the opinion that this particular matter was "otherwise covered" by the several instructions which were given the jury by the trial court. If in fact the matter was adequately covered by other instructions, such would be a valid reason for refusing to give Armijo's tendered instruction. However, our study of the instructions leads us to the conclusion that such is not the case.
[1-3] The distinction in the field of criminal law between a "general intent" and a "specific intent" is a well-recognized one and is of long standing. A given crime may consist of an act combined with a general intent or, on the other hand, it may consist of an act combined with a specific intent to commit the act, depending entirely upon the particular statute which defines the offense under consideration. Where the statute defining the crime includes a specific intent as an ingredient of its criminality, such specific intent is essential and must be established with the same certainty as any other material element of the crime. See 22 C.J.S. p. 116.
There is no doubt but that in Colorado, as elsewhere, the specific intent to commit bodily injury upon the person of another is a necessary and essential element of the offense known as assault with a deadly weapon. See People v. Hopper, 69 Colo. 124, 169 Pac. 152.
[5, 6] In Shreeves v. People, 126 Colo. 413, 249 P.2d 1020, a case involving a prosecution for the offense of assault with a deadly weapon where this Court held that as a matter of law the People had failed to establish, prima facie, such requisite specific intent, we approved the following applicable language:
"Where a crime consists of an act combined with a specific intent, the intent is just as much an element of the crime as is the act. In such cases, mere general malice or criminal intent is insufficient, and the requisite specific intent must be shown as a matter of fact, either by direct or circumstantial evidence. The rule is especially applicable where a statutory offense, consisting of an act and a specific intent, constitutes substantially an attempt to commit some higher offense than that which accused succeeded in accomplishing. The general rule, * * * that a criminal intention will be presumed from the commission of the unlawful act does not apply; and proof of the commission of the act does not warrant the presumption that accused had the requisite specific intent. * * *" (Emphasis supplied.)
As we read the instructions, it appears to us that no instruction was ever given which informed the jury that an essential ingredient of the crime with which Armijo stood charged was the specific intent to commit bodily injury upon the person of another and that it was incumbent upon the People to prove, beyond a reasonable doubt, such a specific intent on the part of Armijo. Instruction number seven which the trial court did give the jury clearly concerned itself with the issue of general intent — as contrasted to specific intent — and instructed the jury, inter alia, that such intent could be inferred from the facts and circumstances. This same instruction then went on to advise the jury that the "law warrants the presumption or inference that a person intends the natural results or consequences to follow the act which he intentionally commits . . ." Under Shreeves v. People, supra, such language is inapplicable where a crime consists of an act combined with a specific intent, as opposed to a general intent.
Hence, we deem it abundantly clear that the instruction which was given the jury concerned itself with the issue of general intent only. Thus, there was no instruction which advised the jury that a specific intent to commit bodily injury was an essential ingredient of the offense charged and that in connection therewith the People had the burden of proving such specific intent beyond a reasonable doubt. By his tendered instruction Armijo drew this matter to the attention of the trial court. Under these circumstances we therefore hold that the trial court erred in refusing the tendered instruction, for the very simple reason that the matter of specific intent was not "otherwise covered."
In our view under the circumstances disclosed by the record this omission is not a trivial or non-prejudicial matter. The record discloses that the defendant and the alleged victim were total strangers and that there was no altercation or argument of any type which preceded the alleged assault. In fact, there was no direct evidence that the defendant was the assaulter.
Judgment reversed and cause remanded with directions that further proceedings, if any, be consistent with the views herein expressed.
MR. JUSTICE MOORE and MR. JUSTICE SCHAUER dissent.