1 Dakota 197 | Supreme Court Of The Territory Of Dakota | 1875
I. We are all of opinion that the motion in arrest of judgment was properly overruled. The indictment is sufficient. There are three counts: two charge substantially an assault, or assault and battery with intent to kill, and the third with intent to kill and murder. Admitting that there is no such crime known to our statute, as an assault with intent to murder, the count containing the charge of an intent to kill, the addition of “ and to murder,” would be mere sur-
We need only say on the question as to the verdict, that it is in proper form. The charge in the indictment is single, plain and explicit, and when the jury say we find the defendant guilty as charged in the indictment, it is as certain and unequivocal as if they had named the crime of which they convicted him.
II. The first assignment of error, and which has been strenuously urged by counsel for defendant, is the exclusion of the evidence of the intoxication of defendant. It would seem that the court below held to the opinion, that the crime with which defendant was charged, was not by statute divided, and from its nature was not divisible into degrees, and that if the jury found that the assault or assault and battery was made with a deadly weapon, defendant could not be convicted of a simple assault and battery, there being no such a crime known to the law as a simple assault or assault and battery with a deadly weapon. This question becomes material, when we come to consider it in connection with § 17, Penal Code, which reads as follows:
“ No act when committed by a person in a state of voluntary intoxication is less criminal by reason.of his having been in such condition. But when the actual existence of any particular purpose, motive or intent, is a necessary element, to constitute any particular speóies or degree of crime, the jury may take into consideration the fact that the accused was in*200 toxicated at the time, in determining the purpose, motive, or intent with which he committed the act.”
In cases of homicide, evidence of intoxication is admitted, to be considered by the jury in connection with all the testimony,.in determining the degree of the crime. And the statute above quoted is but the embodiment of the general doctrine. Judge Denio, in delivering the opinion of the court in the case of The People v. Rogers., 18 N. Y., 9, uses the following language: “ It must generally happen, in homicides committed by drunken men, that the condition of the prisoner would explain or give character to some of his language, or some part of his conduct, and, therefore, I am of opinion that it would never be correct to exclude the proof altogether.” If admissible in cases of homicide, there can be no good reason, why it should not be in all crimes which the statute divides into degrees, or which are clearly so divided by inferential construction, and such is unquestionably the intent of the statute.
Is the crime with which defendant is charged susceptible of division into degrees? That is, does it necessarily embrace other crimes? We are of . opinion that it does. (The State of Iowa v. Shepard, 10 Iowa, 126.)
That the man who commits the crime of an assault and battery with intent to kill, ex necessitati, has also committed the lesser offenses of an assault, assault and battery and an assault with intent to do bodily harm, and when charged with the higher might be convicted of either of the lower. Section 402 of the Code of Criminal Procedure, provides that “ the jury may find the defendant guilty of any offense,'the commission of which is necessarily included in that with which he is charged in the indictment, or of any attempt to commit the offense.” In the case of The People v. English, 30 Cal., 214, the defendant was charged with “ an assault with a pistol, with intent to kill and murder,” and the jury found him £í gtiilty of an assault with a deadly weapon with intent to inflict a bodily injury,” and the Cotirt say: “ The offense for which the defendant -was indicted was df a higher grade than that for which he was convicted, still as fcjie offense of which
When a count in an indictment contains a divisible averment, it is the province of the jury to discriminate and find the divisible offense; and this distinction runs through the whole criminal law. It is enough to prove so much of the indictment as shows that the defendant has committed a substantial crime therein specified, or one that is necessarily included in, and forms a constituent element of, the higher offense charged.
In the case of The People v. Rogers, supra, the court below charged the jury, “ that intoxication never excused crime, unless it was of such a degree as to deprive the offender of his reasoning faculties.” And Judge Denio, in commenting on this instruction, says: :i In the proposition as it was thus given to the jury there was no error. No rule is more familiar than that intoxication is never an excuse for crime. There is no Judge who has been engaged in the administration of criminal law, who has not had occasion to assert it. Even where intent is a necessary ingredient in the crime charged, so long as the offender is capable of conceiving a design, he will be presumed, in the absence of proof to the contrary, to have intended the natural consequences of his own act. Thus if a man without provocation shoot another, or cleave him down with an axe, no degree of intoxication, short of that which shows that he was at the time, utterly incapable of acting from motive, will shield him from conviction.” And that learned Judge further holds that if the per
This most able opinion of Judge Denio is largely quoted from, and the doctrine which it holds, followed and strongly sustained in the case of Kenny v. The People, 31 N. Y., 330. Judging from the evidence before us, the defendant was not in such a state of intoxication as deprived him of his reason, or rendered him incapable of forming a purpose or design, but that the act was not done upon a sudden quarrel, or in the heat of passion, or that there might not have been some provocation is by no means clear, and therefore we cannot say that he might not have been prejudiced-by the exclusion of the evidence of intoxication.
III. It appears from the record that the jury was charged and retired to consider their verdict about nine o’clock on Saturday night, and that at three o’clock on Sabbath afternoon, the jury not having agreed, the Judge, on his own motion, had them brought in and delivered to them further instructions by way of correcting a supposed error in his former charge, and this is assigned as error. It is claimed that thiss being a judicial act, cannot be done on the Sabbath. The Sabbath being dies non juridicus, it is doubtless the well settled general rule that no judicial acts can be done on that day. But the jury being out, they are not permitted to separate until they have agreed upon their verdict, or are discharged by the court from further consideration'of the case. The code of criminal procedure provides (§ 388) that “ while the jury are absent the court may adjourn from time to time as to other business, but it is nevertheless deemed open for every purpose > connected with the cause submitted to them, until a verdict is,rendered or the jury discharged.” There is no question as to the right of a jury to bring in a verdict, and the court to receive it
IY. The only remaining question which we deem it necessary to notice is in relation to the following instruction given by the court:
“ Where an assault or assault and battery is made with a deadly weapon, there is a presumption of an intent to take life, and can only be rebutted by proof that it was excusable or justifiable.”
This instruction, in so far as it lays down the doctrine of the presumption of intent arising from the use of a deadly weapon, is correct. Men are presumed to intend the natural and legitimate results of their own acts, and if an assault is made with a deadly weapon, which in all human probability will produce death, it is a presumption in fact that the intention is to take life. But there are other felonious assaults by the use of deadly weapons, besides an assault with intent to kill. Section 290, penal code, provides that u every person who shoots or attempts to shoot at another with any kind of fire arms, air gun, or other means whatever, or commits any assault or battery upon another by means of any deadly weapon, or by such other means or force as was likely to
V. We find no error in the ruling of the court admitting the evidence of Ella Engle, as to -what they in the house heard defendant say when he rode up to the window. None of the witnesses examined on the part of the people as to the threats made by defendant at the window were in the house at the time they heard them. . A witness on part of defense, A. J. Springer, had testified that she and the witness, Ella Engle, were in the house, and that no such threats were made, and undertook to repeat the language of defendant when at the window. We think it was entirely proper for the prosecution to prove what was heard by others in the same room, occupy
YI. It is only necessary to say that all the instructions asked by counsel for defendant were properly refused, as the court in each one was asked to charge substantially that if the jury found the assault and battery was made with a deadly weapon, but not with intent to kill, they could not convict of a lighter offense than assault and battery. As we have construed the law, they might have found him guilty of an assault or assault and battery with intent to do bodily harm, a higher degree of the offense charged than assault and battery.
For the errors herein pointed out, the judgment of the court below must be reversed, and the cause remanded for a new trial.
REVERSED.