APPEAL from a judgment of the Superior Court of the County of Maricopa. Dudley W. Windes, Judge. Judgment affirmed.
Mr. Joe Conway, Attorney General, Mr. Thomas J. Croaff, Assistant Attorney General, Mr. James A. Walsh, County Attorney and Mr. Fred J. Hyder, Deputy County Attorney, for Appellee.
Mr. V. L. Hash, for Appellant.
[61 Ariz. 250] STANFORD, J.
Defendant appellant was charged in the Superior Court of Maricopa County at Phoenix, Arizona, with the crime of robbery in the first count and for aggravated assault in the second count, and although counsel for the defense had made a motion before the Superior Court to dismiss the first count, the County Attorney withdrew count I, and the case comes before this court on count II of an information which reads as follows:
"For a further and separate cause of action, being a different offense from, but connected in its commission with the charge set forth in Count I hereof, the said Manuel Lopez Romero is accused by the County Attorney of Maricopa County, Arizona, by this information of the crime of aggravated assault, a felony, committed as follows:
"The said Manuel Lopez Romero on or about the 21st day of September, 1942, at and in the County of Maricopa, Arizona, did then and there, with a premeditated design, make an unlawful assault upon Thomas Latham and Eugene Holcomb, by the use of means calculated to produce great bodily injury, to wit; by striking, beating and kicking the said Thomas Latham and Eugene Holcomb, as aforesaid upon the head, body and person of them,
the said Thomas Latham and Eugene Holcomb;..."
The evidence shows that Thomas Latham and Eugene Holcomb, who were cousins, and who had [61 Ariz. 251] been at a skating rink at Riverside Park south of the City of Phoenix, were, between ten and eleven o'clock in the night, returning to Phoenix when they met a group of Spanish-American boys. There were about six in number of the Mexicans. One of the Mexican boys asked Latham for a match. Following that request a fight ensued, the first strike having been made by one of the group who struck Holcomb and the defendant then struck Latham. A struggle ensued lasting five or six minutes. One of the witnesses in the case testified that when Latham was upon the ground he saw the appellant herein kick him with his feet. It was also testified that the group of Mexicans aided in churning Latham on the cement, one having him by the hair of his head and others by the feet.
Our statute defines aggravated assault as follows:
"43-603. Aggravated assault and battery defined -- Punishment. -- An assault or battery committed under any of the following circumstances, is aggravated: When the person committing the offense goes into a private home and is there guilty of assault or battery; when committed by a person of robust health or strength upon one who is decrepit; when committed by an adult male upon the person of a female or child, or by an adult female upon the person of a child; when the instrument or means used is such as to inflict disgrace upon the person assaulted, as an assault or battery with a whip or cowhide; when a serious bodily injury is inflicted upon the person assaulted; when committed with a premeditated design and by the use of means calculated to inflict great bodily injury."
The only part of said paragraph that concerns us in this case is the last part where it reads: "when committed with a premeditated design and by the use of means calculated to inflict great bodily injury."
Appellant assigns as error, among other things: (1) That the said count II did not state a crime under [61 Ariz. 252] our statute above quoted because it did not set out the degree of force used so that it could be said as a matter of law that the means used were calculated to inflict great bodily injury. (2) That two distinct and separate offenses were charged in one count in violation of Section 44-725 Arizona Code 1939. (3) That the evidence wholly failed to establish any serious injury to the complaining witness, or that the defendant committed any act against the complaining witness which constituted an aggravated assault.
The defendant in this case testified on cross-examination in part as follows:
"Q. You were in the fight all of the time it was going on, weren't you? A. Yes, I was in the fight. I don't know that we --
"Q. (Interrupting) You didn't hit anybody else except the two American boys? A. I just hit one.
"Q. Which one? This one? (pointing to ...