APPEAL from a judgment of the Superior Court of the County of Maricopa. Levi S. Udall, Judge. Judgment affirmed.
Mr. Joe Conway, Attorney General, and Mr. Albert M. Garcia, Assistant Attorney General, for Appellee.
Mr. Z. Simpson Cox and Mr. Renz L. Jennings, for Appellant.
[58 Ariz. 78] McALISTER, J.
This is an appeal by Brino Hanks from a judgment of conviction of the crime of aggravated assault and from orders overruling his motion for a new trial and in arrest of judgment. He will be designated hereafter as the defendant.
The record discloses that Harry Ong, the prosecuting witness, a young man twenty-two years of age, lived with his parents at 1701 West Linden Street, Phoenix, and worked in the grocery and meat market which his father had run at that point for seven or eight years. On the afternoon of May 11, 1940, between five and six o'clock, his small sister went into the store and told him that Fred Hanks, the thirteen year old son of defendant, was on top of his automobile which was standing in front of the old store building just east of the present one at 1701. He stepped outside and found Fred on the hood and either asked him to get off or
pulled him off and then took him by the arm with one hand and by the neck or hair with the other and started with him along the sidewalk toward his home at 1707 West Linden, the third door west of 1701.
As he was going along the walk with Fred the latter's father, the defendant, drove by in his truck on his way home. Noticing an altercation on the sidewalk between two people, as he passed, he stopped just as he turned into his driveway and, having kept [58 Ariz. 79] his eye on the fracas from the time he recognized his son Fred as one of them, he quickly got out of his truck, pushed the seat forward, grabbed a gun and started toward them. When within a short distance of them, he shot three times, in rather rapid succession, at Harry Ong, one of the bullets going in his back and coming out through the upper part of his neck in front, piercing the lung and cutting a small vein or artery as it passed through his body. He ran into the store, lay on the floor, bled profusely and was then taken to the hospital where he remained until discharged some seven or eight weeks later.
Defendant testified that he shot Harry because he was mistreating or beating his son Fred. There was much testimony from eye witnesses as to the details of the fracas, some stating that Harry was mistreating Fred and others that he was not, but whether the witnesses for the state or those for defendant were correct on this point it is not necessary to determine in order properly to dispose of the questions raised by the appeal.
Following a preliminary hearing an information was filed against defendant accusing him of the crime of "assault with intent to commit murder, a felony," the charging part of which was in this language:
"The said Brino H. Hanks on or about the 11th day of May, 1940, and before the filing of this information at and in the County of Maricopa, State of Arizona, did then and there wilfully and unlawfully and feloniously assault one Harry Ong, a Human being, with the intent to murder the said Harry Ong;..."
At the conclusion of the arguments, the court instructed the jury that "the charge of assault with intent to commit murder also includes the charge of an aggravated assault" and in accordance with this view submitted to it, in addition to forms of verdict finding defendant guilty of assault with intent to commit murder [58 Ariz. 80] and not guilty, one authorizing it to convict him of aggravated assault and this was the one the jury returned.
Defendant contends that the offense of aggravated assault is not included in the crime of assault with intent to commit murder and as we view the record the assignment that the court erred in so advising the jury constitutes the one serious question presented by the appeal. Whether it should be sustained depends upon whether an ...