6 Utah 101 | Utah | 1889
The defendant was indicted for assault with intent to murder, committed by assaulting one James Hair with a pistol, and discharging and shooting off one of the bullets with which said pistol was loaded “at and against the person of him, the said James Hair, with the intent him, the said James Hair, then and there wilfully, feloniously and of his malice aforethought to kill and murder.” The Court in the charge to.the jury said: “And if you believe from the evidence in this case beyond a reasonable doubt that the defendant, at the time and place mentioned
The name of one Goodrich was indorsed upon the indictment, but he was not called as a witness. Under the practice of this Territory we know of no law requiring the prosecution to call the witnesses whose names are endorsed upon the indictment. The names of the witnesses upon whose testimony the grand jury found the indictment are required to be placed upon the indictment. This provision was evidently intended to require the grand jury to show that they acted upon evidence and good faith. The law no doubt contemplates and requires that the whole transaction — the whole of the material facts thereof — shall be presented to the trial jury, and presented fairly. To do this it is frequently true that the testimony of a wit
It is objected that the Court did not instruct the jury that they could convict of assault with intent to do bodily harm, although that was included in the. charge set forth in the indictment. We do not think that it is always necessary that the Court instruct the jury as to all lesser offenses, although they may be embraced within the charge set forth in the indictment, and of which the defendant might be convicted. If it were so, then in every murder case the Court would have to tell the jury that they could convict of simple assault. The law does not require this, but when there are degrees of the offense charged it is the duty of the Court to so instruct the jury. Beyond this the statute does not go, except to say that “ the Court must state to them all matter of law necessary for their information.” Crim. Prac. Act, 1878, p. 284; 2 Comp. Laws, 88. The giving of said instruction, therefore, measurably depends upon whether the case be one where it would seem to be necessary for the information of the jury. The Court’s attention was not called specially to the. offense of assault with intent to do bodily injury. Had it been, the instruction would probably have been given. But the failure to give it, under the circumstances, could not be sufficient ground to reverse the j udgment or for granting a new trial. Upon the first ground, however,