The judgment is therefore reversed and the cause remanded with instructions to the superior court to vacate its judgment and discharge the defendant.
Fred O. Wilson, Atty. Gen., Charles Rogers, Asst. Atty. Gen., Maurice Barth, Asst. Atty. Gen., Carl D. Hammond, Co. Atty., Mohave Co., Kingman, for appellee.
Morgan & Locklear, of Phoenix & Prescott, for appellant.
LaPrade, Chief Justice. Udall, Stanford, Phelps, and De Concini, JJ., concur.
[69 Ariz. 95] LaPrade,
Clyde Fling, defendant-appellant, was by a jury convicted of the crime of aggravated assault, a felony. The "aggravation" had its origin in the allegation of the information that defendant assaulted the complaining witness in the private home of the latter. By section 43-603, A.C.A.1939, it is provided that when any person goes into a private home and there is guilty of an assault or battery, such assault or battery is "aggravated." This appeal is from the resulting judgment and sentence to a term in the state penitentiary. Upon an additional count in the information charging assault with a deadly weapon, the defendant was acquitted.
An abbreviated statement of the facts presents the following picture. The parties lived in separate trailer houses located in a section of the Colorado River bottom called "Okie Flats," approximately one-half mile south of Bull Head City, Mohave County, Arizona. Defendant secured his electricity through wires running from the trailer of the complaining witness Hodges, who testified that on the evening of the alleged offense defendant knocked on his door and was told to "come in"; that upon entering defendant said "* * * Theodore, did you turn my lights off?" Hodges further testified: "* * * and he used some bad language there when he said that, and I was sitting there and as I started to raise up is when he pulled his gun." The examination of Hodges proceeded as follows:
"Q. You say that was when he pulled his gun? A. As I raised up out of the chair.
"Q. Did he pull a gun? A. Yes.
[69 Ariz. 96] "Q. From where? A. He had it stuck down in his belt.
"Q. What did he do with it? A. He stuck it in ...