14 Utah 173 | Utah | 1896
The defendant was indicted for assaulting one Emil Sacherson, with intent to murder him, and wds found guilty of an assault with a deadly weapon, with intent to da him bodily harm'. On this trial, the court .oyer-ruled an objection to the admission of any evidence under the indictment, and also a motion for a new trial, and a motion in arrest of judgment, and sentenced him to four months’ imprisonment. From the order overruling the motion for a new trial, and the sentence, the defendant has appealed. He alleges that the court erred in holding that a public offense was described in the indictment, and in admitting evidence under it.
The offense charged in the indictment is defined in . the statute as follows: “Every person, who- assaults another with intent to commit murder is punishable by imprisonment in the penitentiary, not less than .one, nor more than ten years.” Comp. Laws Utah 1888, § 4471. The offense is described in the indictment as follows: “Frank McDonald is accused by the grand jury * * * of the crime of assault with intent to commit murder, committed as follows: The said Frank McDonald,- on the 11th day of August, A. D. 1895, at the county of Salt Lake, in said territory of Utah, did unlawfully assault one Emil Sacherson. with a deadly weapon, to wit, a revolver, loaded with powder and leaden- bullets, which he, the said Frank McDonald, then and there held in his hands, and then and there tried to discharge upon and into the body of the said Emil Sacherson, with the intent him, the said Emil Sacherson, to then and there kill and murder. * * *” The crime designated as an assault with intent to murder is described in the above section of the law in very general terms. It consists of the terms, “Every person who assaults another with intent to commit murder.” Counsel does not object to the
The second subdivision of section 4930 of the Laws of Utah of 1888 requires “a clear and concise statement of the acts or omissions constituting the offense, with such
But defendant also insists that he was convicted of a crime not described in the indictment. The offense of which the defendant was convicted is defined in section 4488, Comp. Laws Utah 1888: “Every person who, with intent to do bodily harm, and without just cause or excuse, or when no considerable provocation appears, or when the circumstances show an abandoned or malignant heart, commits an assault upon the person of
The court charged the jury, among other things: “If you find that the said defendant made an assault upon Emil Sadherson without just cause or excuse, with the intention of doing him bodily harm, you should find him guilty of an assault with a deadly weapon, with intent to do bodily harm.” To this the defendant excepted, because the court did not add after the words “just cause or excuse” the words “or when no considerable provocation appeared.” It is impossible to conceive of a considerable provocation when the assault is made without just cause or .excuse. We find no reversible error in this record. The judgment and order appealed from are Affirmed.