| Kan. | Jan 15, 1884
The opinion of the court was delivered by
On February 27, 1883, an information was filed charging defendant with the crime of assaulting and beating one Arthur Shadinger with intent to kill. On the trial the defendant was convicted of a simple assault and battery, fined $50 and costs, and therefrom he brings this appeal to this court.
Two questions only require notice:
I. The information, filed as stated February 27, 1883, charged in the past tense that defendant did assault; but further stated that such assault was on the 27th of December, 1883; that is, it alleged in February, 1883, an assault committed in December, 1883, long after the filing of the information, and after the case was called for trial. After the jury had been impaneled and sworn, defendant objected to the admission of any testimony, on the ground that the time stated was after the filing of the information and the time of trial. Thereupon, on motion of the county attor
No information may be quashed or set aside for any of the following defects, among others;
*508 “Sixth, For any surplusage or repugnant allegation, when there is sufficient matter alleged to indicate the crime and person charged; nor, seventh, for any other defect or imperfection which does not tend to the prejudice of the substantial rights of the defendant upon the merits.” (Comp. Laws 1879, ch. 82, §110.)
Under this provision, where the information charges in a past tense that an offense has been committed, but names a date subsequent to the date of the information, we think the court may permit an amendment so as to place the date prior to that of the information; and this without trespassing upon the substantial rights of the defendant. See in support generally of the views thus expressed, the following authorities: The State v. Wister, 62 Mo. 592" court="Mo." date_filed="1876-05-15" href="https://app.midpage.ai/document/state-v-wister-8005355?utm_source=webapp" opinion_id="8005355">62 Mo. 592; The State v. Wilcoxen, 38 id. 370; The State v. Sam, 2 Dev. N. C. 567; Jones v. Commonwealth, 1 Bush, 34" court="Ky. Ct. App." date_filed="1866-12-11" href="https://app.midpage.ai/document/jones-v-commonwealth-7378426?utm_source=webapp" opinion_id="7378426">1 Bush (Ky.), 34; The State v. Barnett, 3 Kan. 250" court="Kan." date_filed="1865-02-15" href="https://app.midpage.ai/document/state-v-barnett-7882070?utm_source=webapp" opinion_id="7882070">3 Kas. 250. See also The People v. Kelly, 6 Cal. 210" court="Cal." date_filed="1856-07-01" href="https://app.midpage.ai/document/people-v-kelly-5433120?utm_source=webapp" opinion_id="5433120">6 Cal. 210; The People v. Littlefield, 5 id. 355; Hampton v. The State, 8 Ind. 336" court="Ind." date_filed="1856-12-09" href="https://app.midpage.ai/document/hampton-v-state-7033301?utm_source=webapp" opinion_id="7033301">8 Ind. 336; Hardebeck v. The State, 10 id. 459; The State v. Elliott, 34 Tex. 148" court="Tex." date_filed="1871-07-01" href="https://app.midpage.ai/document/state-v-elliot-4891104?utm_source=webapp" opinion_id="4891104">34 Tex. 148; The State v. Hoover, 31 Ark. 676" court="Ark." date_filed="1877-05-15" href="https://app.midpage.ai/document/state-v-hoover-6540378?utm_source=webapp" opinion_id="6540378">31 Ark. 676.
II. It is insisted that while a defendant under a charge of an assault and battery with intent to kill may be convicted of a simple assault and battery, yet he may be so convicted only when such assault and battery was committed in the manner and form alleged in the information, and that therefore the court in its instructions should have so limited the action of the jury. As counsel say, if one is charged with an assault with a revolver, and shooting with attempt to kill, he ought not under the information to be convicted of a mere assault by the slapping of hands. Doubtless as a rule this claim of counsel' is correct; but if any specific instructions limiting and restricting the action of the jury were necessary, they should have been asked by counsel. Of the general proposition, that under an information charging one crime a defendant may be convicted of a less crime included therein, there can be no question. So the statutes prescribe, and so the court instructed. If any limitation was necessary, a specific instruction to that effect should have been asked. None
These are all the matters requiring special notice, and in them appearing no error, the judgment will be affirmed.