11 Or. 205 | Or. | 1883
The appellant, William Smith, a prisoner in the state penitentiary, was indicted under section 677 of the criminal code, for assaulting with a deadly weapon and wounding George Collins, an officer of the penitentiary, having the charge and custody of the prisoner. The appellant was tried, found guilty and sentenced to death. Several errors are relied on to reverse the sentence; two of which are, that the indictment was insufficient in that it did not allege that the prisoner knew Collins to be an officer, and that the prisoner was kept with irons on his feet during the trial— a motion of the prisoner’s counsel to have the irons removed being overruled on the ground that the irons were “put on the defendant at the penitentiary and could not be removed without much delay, and it would require the work of a blacksmith to remove them;” to which ruling the prisoner’s counsel excepted.
The sentence must be reversed on both grounds. An indictment must be so drawn as to exclude any assumption that the indictment may lie proved and the defendant still be innocent. (State v. Melville, 11 R. I., 418.) To constitute the precise offense charged, the court deem the rule to be deduced from the authority to be that the prisoner must have known Collins to be an officer of the penitentiary. (2 Bish. Crim. Law., sec. 51; Bish. on Stat. Crimes, sec. 664; Commonwealth v. Kirby, 2 Cush., 581; Horan v. The State, 7. Tex. App., 183; The State v. Downer, 8 Vt., 424.)
On the second point, that it was error to keep the prisoner in fetters during the trial, the opinion in the case of The State of Missouri v. Kning, 1 Mo. App., 438, leaves nothing further M o be said. The casé was affirmed on appeal.
Judgment reversed.
