State v. Finley

6 Kan. 366 | Kan. | 1870

The opinion of the court was delivered by

Valentine, 3.:

The defendant William Finley, was charged, on information of the county attorney of Doniphan county, with the offense of assault with intent to commit murder. A trial was had, and the defendant was found guilty of an assault only, and was fined one hundred and fifty dollars, and he now appeals to this court.

Two questions are raised: First, Does the information charge any offense ? Second, Had there been any preliminary examination, etc., before the information was filed ? The appellant raised these questions in the court below by moving to quash the indictment, and also by moving in arrest of judgment.

i. ikmmimiohoffense may be "ms?"' I. An^assault is a criminal offense, (Gen. Stat., p. 825, §48,) of which the district court has original jurisdiction, concurrent with justices of the peace; (Gen Stat., 383, § 308; Laws of 1869, p. 149;) and this information clearly, and beyond all doubt, sufficiently charges an assault: 2 Wharton’s Am. Cr. Law, § 1263; 3 Sneed, 66; Whart. Prec. Ind. and Pleas, 214; Train & Hurd’s Prec. Ind., 38;) and the defendant is found guilty of an assault only. If it was necessary we would also state that we think the information is sufficient as an information charging an assault with intent to commit murder: Whart. Am. Cr. Law, §§ 292, 1281; 3 Gill & Johns., 8; 5 Cranch, 87; 24 Miss., 371; 4 Hill, 133; and should be held good on a motion to quash, or on a motion in arrest of judgment, when the verdict is only for an assault. The facts constituting the offense need not be stated in the information in minute detail, but only in general terms.

2.__The inror_ Bhowpreiiminary examtaaII. There are two answers to the second question: Jñrst, there was a preliminary examination, as appears from the record brought to this court; Second, the said question was not properly raised m x j. j. o the court below.

It is true, that before the county attorney is authorized to file an information in a criminal action in the district court, there must have been a preliminary examination, unless the defendant has first waived such examination, or unless he is a fugitive from justice; (§ 69, crim. code;) or, unless the district judge has ordered the information to be filed; (§71, id.) But it is not necessary that the information itself should show these facts: State v. Barnett, 3 Kas., 250, 254, et seq. All that is required of the information is, that it charge the ojíense sufficiently, and show that it is prosecuted by the proper officer. If there had been in fact no preliminary examination in this case, and no sufficient cause existed for filing the information without a preliminary examination, the defendant should have raised the question in the court below, in a proper manner, ás by a plea in abatement. He could not raise the question by a motion to quash the information, nor by a motion in arrest of judgment.

The judgment of the court below is affirmed.

All the Justices concurring.