This case was originally assigned to me and I prepared an opinion which fully expresses my views on what appears to me to be the single, decisive question presented on the appeal. A majority of my colleagues take a different view of the case. Therefore, the opinion so prepared will now serve to express my dissent.
The decisive question presented on this appeal is: Defendant having been convicted in the district court of the commission of a simple assault, and not with the crime of battery, is the complaint sufficient to support the conviction for simple assault?
Section 17-1201, I. C. A., defines an assault as follows:
"An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another."
And section 17-1203, I. C. A., defines the crime of battery in the following language: "A battery is any wilful and unlawful use of force or violence upon the person of another."
Under the statute (sec. 17-1201, supra) the elements of a simple assault are: (a) unlawful (b) attempt (c) coupled with a present ability (d) to commit a violent injury (e) on the person of another.
And under the statute (sec. 17-1203, supra) the elements of the crime of battery are: (a) wilful (b) unlawful (c) use of force or violence (d) upon the person of another.
Bearing in mind the elements of the offense of simple assault as fixed by section 17-1201, supra, in determining the sufficiency of the complaint, in the case at bar, to support a conviction for that offense, consideration must be given *Page 155 to the rule laid down by section 19-4001, I. C. A., providing that:
"All proceedings and actions before probate and justices' courts for a public offense of which such courts have jurisdiction, must be commenced by complaint under oath, setting forth the offense charged, with such particulars of time, place, person and property as to enable the defendant to understand distinctly the character of the offense complained of, and to answer the complaint."
In State v. Bidegain, 33 Idaho 66, 189 P. 242, this court had under consideration the sufficiency of a criminal complaint also charging the commission of a misdemeanor, to wit, herding, grazing and pasturing sheep on a cattle range in violation of C. S., section 8333, now section 24-1607, I. C. A. This court held in that case that a criminal complaint, in order to be sufficient, must set forth all the elements necessary to constitute the crime sought to be charged.
Does the complaint in the instant case set forth the crime of assault "with such particulars of time, place, person . . . . as to enable the defendant to understand distinctly the character of the offense complained of, and to answer the complaint" (emphasis ours), and does the complaint set forth also all the elements of the offense of assault as fixed and defined by section 17-1201, supra?
That the complaint sets forth each and every element of the crime of battery is at once disclosed by a comparison of the complaint with section 17-1203, supra. The state having alleged all of the elements of battery, it follows that a person of common understanding, from a reading of the complaint, would necessarily have understood that he was required to answer the alleged commission of the particular crime charged in the complaint, to wit, battery. On the other hand, if the complaint had set forth all of the elements of the crime of simple assault, instead of the elements of the crime of battery, a person of common understanding would then, upon a reading of the complaint, necessarily have understood that he was charged with the crime of simple assault, that is to say, "an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of *Page 156 another" — under the statute (section 17-1201, supra) a different crime than the crime of battery. It is not a question here as to how a trained lawyer would understand the complaint, but how a person of common understanding, a layman, would understand it.
It appears from a comparison of the complaint with section 17-1201, supra, that the elements of the crime of simple assault, to wit, an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another (in this case, one Howard Eckersell), were omitted from the complaint. The state contends, however, that "every charge of battery in the language of the statute includes the charge of simple assault, warranting conviction of the lesser offense." As we understand the state, it contends that a charge of assault is necessarily included within, and must necessarily be inferred from, a charge of battery. In support of its contention, the state cites and relies upon section 19-2212, I. C. A., which provides as follows:
"Conviction of included offense. — The jury may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged in the indictment, or of an attempt to commit the offense."
This court had occasion to construe that statute in the case of State v. Singh, 34 Idaho 742, 203 P. 1064. Stripped of all verbiage, it was charged that on or about the 23d day of August, 1920, in Washington county, Idaho, defendant Singh "then and there being did assault with intent to kill and murder one Parker Gundo, he the said defendant having the present ability so to do, by then and there striking, hitting and beating said Parker Gundo with a heavy stick or club, . . . ." In the Singh case, supra, the state contended that the lesser crime of assault by force or means likely to produce great bodily harm was included within the greater crime of assault with intent to commit murder. And in the case at bar, it is likewise contended by the state that a lesser crime is included within a greater, and, therefore, that a charge of battery "includes the charge of simple assault, warranting conviction of the lesser offense." (Emphasis ours.) In the Singh case, supra, the decisive question was, *Page 157 and in the instant case the decisive question is, as to whether the facts constituting a lesser offense must beclearly and distinctly stated, as required by statute (sec.19-4001, supra), or whether it is sufficient if the facts appear by inference or argument. This court held in the Singh case that the facts constituting a lesser offense must heclearly and distinctly stated and that it is not sufficient if the facts appear by inference and argument, and reversed the judgment of conviction and ordered a new trial. In the case at bar, the facts constituting the crime of simple assault are notclearly and distinctly stated, and if such facts can be made to appear in any way, or at all, it is only by inference and argument. (State v. Smith, 58 Mont. 567, 194 P. 131; Connardv. State, 56 Okl. Cr. 134, 35 P.2d 278; Babbitt v. State,26 Wyo. 27, 174 P. 188; Pettibone v. United States,148 U.S. 197, 13 Sup. Ct. 542, 545, 37 L. ed. 419.)
This court in the Singh case, supra, cited, quoted from, and approved In re McLeod, 23 Idaho 257, 128 P. 1106, 43 L.R.A., N. S., 813. And both the state and appellant cite and rely upon the McLeod case, the state to support its contention that "every charge of battery in the language of the statute includes the charge of simple assault, warranting conviction of the lesser offense," and appellant to support his contention that a defendant "can only be convicted of a lesser offense than the one charged, where the lesser is specifically charged as constituting a part of the higher, or by an added count, where the lower is necessarily included in the higher." In the McLeod case, supra, it was charged that "McLeod on or about the 19th day of October, 1912, at Rocky Bar, Idaho . . . ., did then and there wilfully, unlawfully, feloniously and with malice aforethought, kill and murder one George Guay, a human being." Following his conviction of an assault with a deadly weapon, McLeod filed an original petition in this court for a writ of habeas corpus. It will be observed, and McLeod contended, that the information did not charge that the murder was committed with a deadly weapon and, therefore, that the lesser offense, to wit, an assault with a deadly weapon, was not included in the greater — murder. It was there contended *Page 158 by the state "that if the evidence on the trial of the offense charged, in regard to the facts and circumstances of such offense, necessarily proves commission of the minor offense and each and every element thereof, such minor offense is necessarily included in such charge." Here, the state makes substantially, if not identically, the same contention, it being contended that "it does not appear reasonable to aver, in the light of the words of the statute, that a wilful and unlawful infliction of violence upon the person of another could be accomplished unless preceded by an attempt, coupled with present ability, to do that very thing."
We have examined the record in the McLeod case and find that the murder charged in that case was actually committed with a deadly weapon, to wit, a Colt's revolver. Stated differently, the record in the McLeod case shows a completed offense of an assault upon Guay with a deadly weapon likely to and which did produce great bodily injury — the death of Guay. In the McLeod case the charge of murder was alleged in the language of the statute and, too, this court in that case was dealing with a completed assault, to wit, a completed assault with a deadly weapon. And in the case at bar the charge of battery is also made in the language of the statute, and it is contended by the state that the record here also presents a case of completed simple assault. Furthermore, the McLeod case embraced all the statutory grades, or offenses, of assault, to wit, simple assault, assault with a deadly weapon, and assault with intent to commit murder.
In the McLeod case, supra, after an exhaustive discussion, and full and careful consideration and analyses of the statutes defining murder, simple assault, and assault with a deadly weapon, as well as section 19-2212, supra, relied upon by the state in the case at bar, this court held that "Where an information is filed against a defendant, charging such defendant with the crime of murder, and such information charges the defendant with wilfully, unlawfully, feloniously and with malice aforethought killing and murdering one George Guay, a human being, and there is no allegation as to the manner or means of the killing, the defendant can only be convicted upon said charge of the crime of murder, which includes murder in the first degree, murder in the second *Page 159 degree and manslaughter," and also that "Where an information charges murder in the language of the statute only, the person charged may be found guilty only of murder in one of the degrees specified in the statute — murder in the first degree, murder in the second degree or manslaughter, if the evidence warrants such a finding. If, however, the information had charged murder by an assault upon the person of another with a deadly weapon or instrument, the jury could have found the defendant guilty of murder in any of the degrees, and also of the crime of assault with a deadly weapon or instrument, if the evidence warranted such a finding."
It will thus be seen that this court squarely held that where an offense is charged in the language of the statuteonly, a defendant can be convicted only of the offense so charged, or of one of the degrees thereof, if such offense is divided into degrees, but that if a lesser offense is specifically charged as constituting a part of the higher, then, and in that case, the defendant can be convicted of the lesser offense. (See, also, State v. Crawford, 32 Idaho 165,166, 169, 179 P. 511.)
The rule supported by the best reasoning seems to be that where one is charged with a higher offense, he may be convicted of an included offense only where the allegations of the complaint, or information, are sufficient to charge the lower. (State v. Howard, 157 Wn. 183, 288 P. 236; State v. Miller,124 Iowa, 429, 100 N.W. 334; Jones v. State, 100 Ark. 195,139 S.W. 1126; House et al. v. State, 186 Ind. 593, 117 N.E. 647; 1 Bishop Criminal Law, 9th ed., sec. 794, and cases cited.)
Moreover, appellant was not given an opportunity in either the justice or district courts to plead guilty or not guilty of assault. When he pleaded "not guilty" his plea was to a charge of battery and he was acquitted of that. He has never pleaded to the charge of assault for the very good reason that he was not charged with it and there was no issue in respect to that crime stated in the complaint to which it was possible to enter a plea.
I am authorized to say that Mr. Justice Morgan concurs in this dissenting opinion. *Page 160