Guy v. State

| Kan. | Sep 15, 1863

By the Court,

Kingman, J.

The appellant was indicted in the Doniphan district court for an assault with intent to kill one Ephraim Kelly. He' ivas tried and convicted of an assault and assessed to pay a fine of one dollar.

After verdict, and before judgment, the appellant moved the court to arrest the judgment, on the ground that an assault is not indictable, which motion was overruled and judgment was pronounced against the appellant, from which hé appeals to this court.

The errors assigned are :

First. That the indictment is insufficient.

Second. .That the court erred in overruling the motion for arrest of judgment.

No question was made in the court below as to the sufficiency of the indictment, and whether it is not now too late to urge that point may well be doubted ; but as that point was not argued, and it is not necessary to pass upon it in this case, it will not be decided. The indictment is manifestly good upon either of the two grounds for which a motion in arrest of judgment can be made, and this court will not certainly go further than the court below could have gone after verdict.

The alleged error in the indictment is, that it does not state that it was found by a grand jury of the county.

The indictment is as follows :

“ In the second judicial district sitting in and for the county of Doniphan.

“The State of Kansas 7 vs. V “Alfred Guy. j

Indictment.

“ The jurors of the grand jury selected, empannelled and sworn in and for the body of said county, charged to inquire of offenses committed within the said county, in the name and by the authority of the state of Kansas, upon their oaths do present and find that Alfred Guy,” &e.

The defect alleged in this indictment is, that it does not appear from the face of the indictment that it was found by a grand jury of the county in which the court is held. The omission to set forth that the grand jury were of the county of Doniphan seems not well taken, when tin? name of the county is correctly laid in the margin, as in this case. At common law it does not seem to have been the practice to repeat the name of the county in the caption, but only to refer to the name in the margin as in the said county. (See Whar. Cr. L., p. 224, and authorities there cited; Archbald's Cr. Pl., p. 76.)

But if it be a defect, it is clearly not. one which can he taken advantage of on motion in arrest of judgment. Only two causes are specified in our code for the arrest of judgment, and this is not one of them. (§ 260 Criminal Code.)

The second error alleged is that the court had no jurisdiction of the offense.

Section two hundred and ninety-eight of the crimes and punishment act provides that assaults and batteries are not indictable, but shall be punished in a summary manner before a justice of the peace, in conformity to the act defining the jurisdiction and regulating the proceedings of justices’ courts in cases of breaches of the peace.

The justices’ act neither confines the jurisdiction to justices, nor confers it upon the district court. It only provides, so far as this point is concerned, that nothing in that act shall prevent a prosecution of such assault and battery, or affray, by indictment in the courts having criminal jurisdiction. This gives the court no jurisdiction, for it is not in that act that the prohibition is found, but in the act for the punishment of crimes. This leaves it clekr to my mind that an assault and battery is not indictable in the district court.

The one hundred and seventh section of the code of criminal procedure is as follows :

“Upon an indictment for an offense consisting of different degrees, the jury may find the defendant not guilty of the degree charged in the indictment, and guilty of any degree inferior thereto, or of an attempt to commit the offense.”

In this case the appellant was indicted for an assault with intent to kill, and convicted of an assault — an inferior degree ot the same offense.

This finding is in admitted conformity with the section just quoted, and we think not in conflict with section two hundred and ninety-eight of the act for the punishment of crimes.

That section provides that assaults and batteries are not indictable, but does not declare that the district court has not jurisdiction. When, therefore, the offense charged is one properly presented in the district court, and including the minor offense, no violence is done to either provision by finding the accused guilty of an assault. The object of the provision in section two hundred and ninety-eight is undoubtedly to save expense and prevent the docket of the district court from being cumbered by cases of a trifling character.

The grand jury may have such evidence before them as justifies an indictment for an assault with intent to kill, while upon the trial it would only be sufficient to justify a verdict of guilty of assault. The time -of the court has been occupied and the costs incurred already, and it would be a saving of both time and expense to let the verdict be found for the offense proven.

This interpretation gives force and effect to both of the provisions quoted, and tends to facilitate the administration of justice.

The decision of the court below is affirmed, with judgment for costs against the appellant, in this court.

Bailey, J., concurring. Cobb, chief justice, dissented, holding that the district courts have no jurisdiction to try criminal cases for assault.