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Dunn v. State

Supreme Court of Arizona

November 8, 1937

JOE DUNN, Appellant,
v.
STATE OF ARIZONA, Respondent

APPEAL from a judgment of the Superior Court of the County of Maricopa. John P. Clark, Judge. Judgment reversed and cause remanded with instructions.

Mr. Marshall W. Haislip, for Appellant.

Mr. Joe Conway, Attorney General, Mr. W. E. Polley, and Mr. J. M. Johnson, his Assistants, and Mr. Jonn W. Corbin, County Attorney, for Respondent.

OPINION

Page 108

[50 Ariz. 474] LOCKWOOD, J.

Joe Dunn, hereinafter called defendant, was convicted of the crime of aggravated assault and has brought this case before us for review.

[50 Ariz. 475] There are five assignments of error, but we think it necessary to consider only the first, which is that the court overruled defendant's special demurrer to the information, made on the ground that it charged more than one offense. Section 4980, Revised Code 1928, reads in part as follows:

"One offense only may be charged; means; time; party injured. The indictment or information must charge but one offense."

The charging part of the information is as follows:

"In the name and by the authority of the State of Arizona Joe Dunn and Norris C. Browning is accused this 27th day of March, 1937, by the County Attorney of Maricopa County, State of Arizona, by this information, of the crime of assault with a deadly weapon, a felony, committed as follows, to-wit:

"The said Joe Dunn and Norris C. Browning on or about the 20th day of March, 1937, and before the filing of this information at and in the County of Maricopa, State of Arizona, did then and there wilfully, unlawfully and feloniously, with a certain deadly weapon, to-wit: a knife, which they, the said Joe Dunn and Norris C. Browning, then and there had and held in their hands, in and upon the body and person of one Loren La Prade, there being, make an assault; they, the said Joe Dunn and Norris C. Browning, being then and there adult male persons, and he, the said Loren La Prade, being then and there a child."

It is claimed by defendant that this charges both the crime of assault with a deadly weapon and that of aggravated assault. Assault with a deadly weapon is described by the Code of 1928 as follows:

"§ 4615. Assault with deadly weapon; by life prisoner; punishment. Every person who commits an assault upon the person of another with a deadly weapon or instrument, or by any means or ...


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