The opinion
Mr. Justice Schauer
dissenting:
The defendant was tried and convicted of the charge of: “* * * did then and there feloniously, unlawfully, wilfully and maliciously make an assault upon Roberta J. Urbina with a deadly weapon, instrument or other thing, namely, a sharp and deadly instrument, then and there had and held, with intent then and there feloniously, unlawfully, wilfully and maliciously to commit a bodily injury upon the person of said Roberta J. Urbina, no considerable provocation then and there appearing for the said assault, and the circumstances thereof then and there showing an abandoned and malignant heart in him, the said Tony Armijo; * * *.”
At the trial of the case the defendant tendered the following instruction:
“The court instructs you that before you can find the defendant guilty of the charge contained in the information you must be satisfied beyond a reasonable doubt that the defendant had the specific intent to commit a bodily injury upon the person of the complaining witness.” which was “Refused as covered.”
*222 The court did give sixteen instructions in the usual manner, seven of which, in whole or in part, are as follows:
“INSTRUCTION NO. 1
“* * * charges that * * * make an assault upon Roberta J. Urbina with a deadly weapon * * * with intent then and there feloniously, unlawfully, wilfully and maliciously to commit a bodily injury upon the person * * *.
“And this, Members of the Jury, are the issues you are called upon to determine.”
“INSTRUCTION NO. 2
“A crime consists of a violation of a public law in the commission of which there shall be an union or joint operation of act and intention.”
“INSTRUCTION NO. 4
“If from the evidence in this case, or the lack of evidence, you entertain a reasonable doubt as to any material fact necessary to constitute the offense charged, then it will be your duty to give the defendant the benefit of such doubt and acquit him.”
“INSTRUCTION NO. 6
“The burden of proof is upon the people to prove each and every material allegation contained in the information, to your satisfaction beyond a reasonable doubt, * * * you will find the defendant not guilty. * * “INSTRUCTION NO. 7
“The court instructs the jury that it devolves upon the prosecution to prove the intent in this case to your satisfaction beyond a reasonable doubt, * * *.
“The law warrants the presumption or inference that a person intends the natural results or consequences to follow the act which he intentionally commits, and which ordinarily do follow such acts.”
“INSTRUCTION NO. 8
“* * * with an intent to commit upon the person of another a bodily injury * * *.”
*223 “INSTRUCTION NO. 16
“No single one of these instructions states all the law applicable to the case, but all of these instructions must be taken, read and considered together, as they are connected with and related to each other as a whole.”
The jury returned a verdict reading in pertinent part:
“We, the jury, find the defendant, Tony Armijo, Guilty of Assault with a deadly weapon with intent to do bodily injury, in manner and form as charged in the information.”
The crux of the majority opinion as a basis for reversal is found in two statements:
“As we read the instructions, it appears to us that no instruction was ever given which informed the jury that an essential ingredient of the crime with which Armijo stood charged was the specific intent to commit bodily injury upon the person of another and that it was incumbent upon the People to prove, beyond a reasonable doubt, such a specific intent on the part of Armijo.* * *.”
“* * * Thus, there was no instruction which advised the jury that a specific intent to commit bodily injury was an essential ingredient of the offense charged and that in connection therewith the People had the burden of proving such specific intent beyond a reasonable doubt. * * *.”
The jury was told in Instruction No. 1:
“* * * with intent then and there feloniously, unlawfully, wilfully and maliciously to commit a bodily injury * *
This was followed by Instruction No. 2, quoted above, and then, among other instructions, they were told in No. 6:
“* * * to prove each and every material allegation in the information * * *.”
To say that it was error to refuse defendant’s tendered Instruction No. 1 in the light of the instructions given is to suggest that the defendant is entitled to a *224 repetition of his theory of his defense. In this case the jury was in fact instructed on the element of specific intent. Therefore, it was not error to refuse defendant’s tendered Instruction No. 1, the content of which was contained in the instructions given. In Polly v. People, 107 Colo. 6 , 108 P.2d 220 , this court stated:
“* * * rj^g reiteration of this element in instruction No. 15 somewhat overemphasizes that phase of the case. We suggest that fairness and impartiality can perhaps better be served by not singling out the defendant in more than one instruction relating to the interest he or she may have in the result. * *
I submit that this is an understatement of the situation in the case at bar. A fair and impartial trial does not submit to repetition and overemphasis of one theory or element of the case.
To suggest that the jury was not given a “clear cut” instruction on specific intent is as ill-founded as to argue that the victim in this case did not receive a “clear cut” down her back, through her garments, both above and below the waist, requiring twenty-four stitches. One might well ask, in the light of human experience, what on earth did the defendant intend? I seriously doubt that the jury was confronted with the possible intent of an expression of love and affection.
In Lutz v. People, 133 Colo. 229 , 293 P.2d 646 , it was said:
“* * * jq-Q error is committed if a trial court refuses to give a requested instruction, but covers the subject matter of the refused instruction by one which is submitted to the jury. * *
This language was drawn from the rule announced in Reigan v. People, 120 Colo. 472 , 210 P.2d 991 .
From the evidence in the case at bar the jury quite properly could have concluded that defendant intended to cut the young lady, and since it is undisputed that Miss Urbina was in fact cut, the evil intent follows the act of the defendant.
*225 The majority opinion cites as authority the cases of Shreeves v. People, 126 Colo. 413 , 249 P.2d 1020 , and People v. Hopper, 69 Colo. 124 , 169 Pac. 152 . It is here respectfully submitted that these two cases do not lend support to a position of reversal of the instant case. The two cases clearly and unequivocally support the accepted rule that specific intent, as an element, must be charged and proved. The cases do not call for reiteration or overemphasis by instruction to the jury of one of the elements of the crime charged.
In Peterson v. People, 133 Colo. 516 , 297 P.2d 529 , this court held:
“The gist of the crime charged is the state of mind of defendant at the time of the alleged assault. This state of mind or intent is usually manifested by circumstances and proof thereof necessarily is by circumstantial evidence, and, of course, such intent is ordinarily inferable from the facts. This is made so because the state of mind of the assailant is concealed within the mind and is not usually, and we might say never, susceptible of direct proof.”
It is submitted that, upon consideration of the instructions as a whole, the jury was sufficiently instructed as to the essential ingredients of the offense charged and as to the burden of proof resting upon the prosecution. In fact, essential ingredients and burden of proof together receive attention no less than ten times in the sixteen instructions given by the court. Moreover, the specific intent requirement again appears in the verdict.
I respectfully dissent.
Mr. Justice Moore authorized me to state that he joins in this dissent.