16 Nev. 89 | Nev. | 1881
Lead Opinion
By the Court,
Appellant was indicted for the crime of an assault with' intent to kill. He was tried, and found “guilty of an assault,” and adjudged to pay a fine of five hundred dollars, and a judgment was also rendered against him for the costs/'
Upon the authority of that case the appeal must be dismissed. It-is so ordered.
Dissenting Opinion
dissenting:
Appellant having been indicted for a felony and convicted of a misdemeanor, the question arises whether this court has jurisdiction of the appeal. Jurisdiction in criminal cases is conferred by the constitution in the following language: “The supreme court shall have appellate jurisdiction * * * in all criminal cases in which the offense charged amounts to felony.” (Art. 6, sec. 4.)
In the consideration of this clause effect must be given
But whatever may have been the intention of the framers of the constitution, the clause conferring jurisdiction does not admit of judicial construction. It should be taken according to the ordinary signification of the plain lauguage used, and, so taken, I am of opinion that the court has jurisdiction of this case.
For these reasons I dissent from the judgment of the court.
Concurrence Opinion
concurring:
Every person accused of a crime must be charged with that crime; but an indictment charging an offense of a higher grade, as assault with intent to kill, also charges, by operation of law, every less offense that may be included under the charge of assault with intent to kill. (People v. Apgar, 35 Cal. 391.) This conclusion necessarily follows, also, from the statute, because the indictment “must be direct and contain * * * the offense charged” (statute 1867, 126), and “in all cases the defendant may be found guilty of any offense, the commission of which is necessarily included in that with which he is charged in-the indictment.” (Stats. 1861, 479, sec. 412.) It follows, then, that a person charged in the indictment with assault with intent to kill, is also charged with simple assault. .
If he is convicted of simple assault, he is acquitted of all offenses of a higher grade, and stands charged and con-’ victed of the lower offense alone, which amounts to a misdemeanor only. I adhere, therefore, to the conclusion arrived at in State v. McCormick, 14 Nev. 348, and concur in the opinion of Mr. Justice Hawley.