25 Kan. 699 | Kan. | 1881
The opinion of the court was delivered by
On March 28th, 1881, an information was filed against the defendant, charging him with having, on February 1st, 1881, in Doniphan county, in this state, unlawfully, willfully, feloniously, on purpose, and of his malice aforethought, assaulted one George Lang with a certain revolving pistol, loaded with powder, leaden ball and cap; said pistol being a deadly weapon, then and there held in the right hand of the said defendant, with the intent then and there willfully, unlawfully, feloniously, on purpose, and of his malice aforethought, to kill the said George Lang, contrary to the statute in such case made and provided. Trial was had at the March term, 1881. The jury rendered a verdict that the defendant was guilty of an assault upon George Lang with a deadly weapon, with intent to kill him, as alleged in the information. On April 2d, a motion for a new trial was filed by defendant
The trial judge seems to have considered the information-fatally defective, because it did not set forth the mode in which the pistol was used, or attempted to be used, or more fully the particular manner of the assault. The information was -founded upon § 38, ch. 31, Comp. Laws 1879, which reads:
“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 bjr confinement and hard labor for a term not exceeding ten years.”
Within the provisions of the code of criminal procedure, the language of the information charged a public offense under said section. (The State v. White, 14 Kas. 538.) Again, this section of the statute is almost identical with that of Missouri and several other states, and under the authorities of those states the charge in this case was sufficiently definite. It is not necessary that the manner of the assault, or the mode in which the pistol was used or attempted to be uspd, when the information alleges the assault was done with a deadly weapon, should be more specifically set forth. (The State v. Chandler, 24 Mo. 371; Kelley’s Criminal Law and Practice, §§ 537, 538; The State v. Chumley, 67 Mo. 41; The State v. Shepard, 10 Iowa, 126; People v. English, 30 Cal. 214; United States v. Herbert, 5 Cranch, 87.) Upon the authorities cited, the court erred in’ arresting judgment. The cause is re