71 P. 847 | Kan. | 1903
The opinion of the court was delivered by
The appellant and three others were arrested and bound over by a justice of the peace to appear before the district court of Chautauqua county to answer the charge of felonious assault on the sheriff
“That the above-named defendants, Sid. Appleby, Arl. Banning, Ross Groves, and Sol. Appleby, on or abo*ut the 26th day of February, 1901, at and within the county of Chautauqua and state of Kansas, then and there being, did unlawfully, feloniously, on purpose and of malice aforethought . . . in resisting the execution of legal process, the said J. W. Taylor being then and there the duly elected, qualified and acting sheriff of said county of Chautauqua, state of Kansas, and having then in his hands and being then attempting to execute and serve a legal warrant against the said Sid. Appleby, Arl. Banning, Ross Groves, and Sol. Appleby ... at the time and place aforesaid and in the manner aforesaid, of malice aforethought did unlawfully and feloniously shoot at the said J. W. Taylor, A. A. Dennis, James Wheeler, George Dale, F. B. Dugan, and Walter Bumgarner with the intent to resist and in resisting, obstructing, and hindering, the execution of legal process..”
The contention is that this information charges an
“Sec. 38. Every person who shall, on purpose and of malice aforethought, shoot at or stab another, or assault or beat another, or assault or beat another with a deadly weapon, or by any other means or force likely to produce death or great bodily harm, with intent to kill, maim, ravish or rob such person, or in the attempt to commit any burglary or other felony, or in resisting the execution of legal process, shall be punished by confinement and hard labor for a term not exceeding ten years.”
“Sec. 164. If any person or persons shall knowingly and wilfully obstruct, resist or oppose any sheriff or other ministerial officer in the service or execution or in the attempt to serve or execute any writ, warrant or process, or in the discharge of any official duty in any case of felony, every person so offending shall upon conviction be punished by confinement and hard labor for a term not exceeding five years, or by imprisonment in the county jail for a term not less than six months, or a fine not less than «KOO >> *
While these two sections, in a general way, make it an offense to obstruct an officer in the execution of process, it will be observed that the offense covered by one is not included in . the other. In the present case the appellant is charged with felonious assault. This is covered by section 38 and not included in section 164. While some • of the language used in the information may be found in section 164, it is clear that it was not the intention of the pleader to charge a crime under that section, and the facts charged do not constitute an offense under section 164. The motion to quash for this reason was properly overruled. The evidence in this case is clearly sufficient, in our judgment, to sustain the verdict of the jury.
The judgment of the court below is affirmed.