Stamper v. State

¶1specially concurring.

¶2I concur with the result reached by the majority opinion but do so only because the evidence does not warrant the giving of the instruction relative to the elements of § 6 — 4r-506(b), W.S.19771 (assault with a *94dangerous weapon) as a lesser-included offense to the crime of manslaughter, and I reach this conclusion in a fashion somewhat different than that of the majority opinion.

¶3We have upheld convictions under the statute in fact situations in which the issue relative to being armed with a dangerous weapon, as opposed to using or exhibiting a dangerous weapon, was not pertinent or presented to us. The most recent of such cases is Brightwell v. State, Wyo., 631 P.2d 1048 (1981). In that case, the threat of bodily injury was accompanied by display of a knife held within three or four inches of the victim. There was no question but that a deadly weapon was used with apparent ability to accomplish the assault. In Brown v. State, Wyo., 590 P.2d 1312 (1979), and in Fuller v. State, Wyo., 568 P.2d 900 (1977), the weapon was a loaded firearm which was actually discharged. In Evanson v. State, Wyo., 546 P.2d 412 (1976), the weapon was a firearm although not actually discharged. The weapon was displayed in each instance so that the element of being “armed with a dangerous weapon” was not contested.

¶4The facts are different in this case. There was testimony that the defendant hit the victim with his fists, and one person said that the defendant kicked the victim. The weapons, then, were assailant’s fists or feet, with the feet possibly clad in boots which, then, could be said to be a weapon. We described a deadly weapon in Evanson v. State, supra, at page 416, as follows:

“ … A weapon, when used in a manner capable of producing and likely to produce death or great bodily injury, is a deadly weapon. … ”

¶5Before an item can be a deadly weapon, it first must be a weapon. If fists or feet, clad in shoes, boots, or otherwise, are dangerous weapons,2 then almost everyone is continually and constantly armed with a dangerous weapon and the language “while armed with a dangerous weapon” in the statute would be superfluous. We cannot assume the legislature to have meant this language to be superfluous. The legislature will not be presumed to intend futile things. Rather, the presumption is that it intended legislation to be reasonable and logical. Yelk v. Department of Revenue and Taxation, Wyo., 595 P.2d 965 (1979); Department of Revenue and Taxation v. Irvine, Wyo., 589 P.2d 1295 (1979). Of course, the manner in which an inanimate object (including boots or shoes) is used may convert that which is not a dangerous weapon per se into a dangerous weapon. People v. Robinson, 52 Ill.App.3d 658, 10 Ill.Dec. 425, 367 N.E.2d 1034 (1977); State v. Bonier, La., 367 So.2d 824 (1979); State v. Luekey, 69 Ohio Op.2d 111, 322 N.E.2d 354, 81 A.L.R.3d 995 (1974); State v. Born, 280 Minn. 306, 159 N.W.2d 283, 33 A.L.R.3d 919 (1968). However, that fact is of little import under the wording of our statute. Our statute requires “malice” in the perpetration of the assault or assault and battery. “Malice” in turn includes the element of “intent.” Nunez v. State, Wyo., 383 P.2d 726 (1963). While the interval may be very small between the forming of the intent and the assault (the use of the boots in this instance), the use did occur after the intent was formed. At the time the intent was formed, the boots were not used improperly. Thus at the time of a necessary element of the assault or assault and battery, the defendant was not armed with a dangerous weapon. If the legislature had intended to make “use of a deadly weapon” rather than “armed with one” the aggravation element of the crime, it could have said so.

¶6I find nothing in the evidence from which a jury could find defendant to have been “armed with a dangerous weapon.” If the use of a dangerous weapon was the element of the offense rather than being armed with one, the use of the shoes on one’s feet in kicking another could make them a dangerous weapon. United States v. Barber, *95297 F.Supp. 917 (D.C.Del.1969). The element in the statute, however, requires one to be “armed with a dangerous weapon”, and wearing shoes does not make one “armed with a dangerous weapon.” Thus, there was no basis for the instruction which designated such to be an element of the crime of assault with a dangerous weapon. Instructions not sustained by the evidence must not be given. Hernandez v. Gilveli, Wyo., 626 P.2d 74 (1981); Beard v. Brown, Wyo., 616 P.2d 726 (1980). The instruction was improper, and the conviction obtained pursuant to it must be set aside.

¶7It is appropriate to note that the language of the statute does not require use, or even exhibition of, a dangerous weapon as an element of the crime. A loaded firearm may be in the pocket of the assailant, completely out of sight and without knowledge on the part of the victim that it existed, but the assailant would be “armed with a dangerous weapon.” In such case, he would violate the statute if he maliciously slapped the victim. Carrying the illustration further, if shoes were a dangerous weapon and the assailant did not possess a firearm but was wearing shoes, he would violate the statute by maliciously slapping the victim. In this respect, the language of the statute is clear, plain and unambiguous. There is no reason to extend the language by looking for a legislative intent. Before a statute may be interpreted according to the spirit and intention of the legislature, it must be free and clear of ambiguity. Kelsey v. Taft, 72 Wyo. 210, 263 P.2d 135 (1953). In other words, if the language of the statute is plain and unambiguous and contains a clear and definite meaning, there is no occasion or reason for resorting to rules of construction for the purpose of ascertaining legislative intent, and the court has no right to look for and impose another meaning. Board of County Commissioners of County of Campbell v. Ridenour, Wyo., 623 P.2d 1174, reh. denied 627 P.2d 163 (1981); Sanches v. Sanches, Wyo., 626 P.2d 61 (1981); State v. Sinclair Pipeline Company, Wyo., 605 P.2d 377 (1980). The statutory element is “armed with a dangerous weapon,” not using one or displaying one. There is no evidence in this case that defendant was armed with a weapon. An instruction which referred to such, in the face of no supporting evidence, was improper.

¶8Accordingly, I concur with the majority opinion that the instruction was improper— but with different reasoning.

¶9I believe discussion of the issue relative to proper admission of the boots into evidence is unnecessary. I do not agree with all said by the majority opinion in its discussion of this issue. For example, the constant reference to failure to give Miranda rights in connection with the search is misleading. It is not necessary to give the Miranda information when requesting permission for a warrantless search. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). For another example, I believe the failure to advise defendant of his right to refuse to consent to a search is overemphasized. Such is “not to be given controlling significance.” United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 828, 46 L.Ed.2d 598, reh. denied 424 U.S. 979, 96 S.Ct. 1488, 47 L.Ed.2d 750 (1976).