44 La. Ann. 582 | La. | 1892
The opinion of the court was delivered by
The charge of the indictment is, that the several defendants, “with a certain dangerous weapon, to-wit: a large piece of timber * * * one Francois Grand! * * * feloniously, wilfully and of his malice aforethought did strike with intent then and thereby him, the said Francois Grandi, to kill and murder,” etc.
In limine, the District Attorney entered a nolle prosequi as to the defendant, Adam Gandi; and upon the trial the two defendants, Jean Baptiste and Noel Alfred, were acquitted, and Toussaint and Eugene Alfred were convicted of the crime of “ striking with a dangerous weapon, with intent to kill.”
Thereupon, the two convicted parties were sentenced “to imprisonment in the parish jail, of the parish of St. Martin, for a period of six months. ”
After trial and conviction, but previous to sentence, counsel for the convicted parties presented and filed a motion in arrest of judgment, upon the grounds, first, that the charge of the indictment does not respond to any law of the State; second, that the verdict of the jury does not respond to the charge of the indictment; and third, that “ a large piece of timber ” is not a dangerous weapon within the intendment of the statute under which the indictment was framed.
This motion was overruled, and the counsel for the accused reserved a bill.
Looking into the acts of the Legislature, under which the indictment was found, and the conviction secured — Acts 43 and 44 of 1890 —it appears that the former delares that “ whoever shall shoot, stab, cut, strike, or thrust any person with a dangerous weapon, with intent to commit murder, on conviction,” etc. Sec. 1, Act 43 of 1890.
The provisions of Act 44 of 1890 are of a'similar phraseology and import, the phrase of the former, to-wit, “with intent to commit
It is therefore evident that the indictment was found under the pro - visions of the former act, though the conviction was secured under the latter act — a verdict permissible in law. It is equally evident that the indictment is responsive to the Act 43 of 1890, and the verdict is responsive to the Act 44 of 1890.
That “ a large piece of timber” is, in the sense of those statutes, “ a dangerous weapon,” we are of opinion, is not open to doubt.
In State vs. Lowery, 33 An. 1224, like phraseology occurring in a similar statute was thus interpreted and applied.
The accused in that case was indicted under Revised Statutes, Sec. 790, which declares that “ if any person lying in wait * * * shall shoot, stab or thrust any person with a dangerous weapon, with the intent to commit the crime of murder, shall,” etc; and the charge was, that the accused ‘ ‘ did .thrust or strike with a dangerous weapon, namely, an iron bolt, rod or pin,” etc., and this court held that such an instrument may well be a dangerous weapon. That decision is correct, and is conclusive of the question here.
Judgment affirmed.
