88 P. 1078 | Kan. | 1907
The opinion of the court was delivered by
Pat Sweeney was given a preliminary examination upon a warrant in which he was charged with having committed a felonious assault upon Will
A motion to quash the information upon the following grounds was denied: (1) That Sweeney had not had a preliminary examination upon the charges in the information; (2) that two or more offenses were charged in the information; and (B) that it contained redundant and irrelevant matter. The charge in the warrant upon which the preliminary examination was held included the offense charged in the information. In this respect the information followed the warrant. The information is unnecessarily prolix, but the motion to quash should not have been allowed for that reason. It charges that the assault and battery began in a building and continued into the street. It does not appear in the information that there was any cessation of hostilities.
It is argued in the appellant’s brief that the prosecuting attorney was guilty of prejudicial misconduct in applying to fhe appellant some opprobrious epithets. Our statute provides that upon a motion to set aside a verdict because of the misconduct of the prevailing party the application must be on written grounds and must be sustained by affidavit. (Gen. Stat. 1901, §§ 4754, 4757; A. T. & S. F. Rld. Co. v. Rowan. 55 Kan. 270, 39 Pac. 1010; Branner v. Nichols, 61 Kan. 356, 59 Pac. 633; Parrish v. Parrish, 67 Kan. 323, 72 Pac. 844; The State v. Brower, post. This question
The third and fourth assignments of error may be considered together. The affray took place in a joint run by Payne and Larimer. Sweeney was drunk, and went to this joint with the avowed purpose, as he expressed it, of “cleaning it out.” His first assault was made upon Larimer, who was somewhere in the center of the room when Sweeney entered. After some tussling with Larimer the latter escaped out of a side or back door. Sweeney then turned his attention to Payne, who was behind the bar, and at whom he threw a heavy glass and then proceeded to demolish him with a stool. At some stage in this proceeding Payne discharged a revolver. When the melee was over it was found that one Mike Carman, who had not in any way participated in the disturbance, had been shot and was dead.
While Payne was on the witness-stand,' describing the disturbance in the joint,, he denied having any knowledge at the time of Carman’s presence in the joint. He testified that he fired the shot at Sweeney, and did not know that it had taken effect in Carman’s body until he was told that it had done so, after the fight was over.
On cross-examination the defendant offered to show that Payne, in a conversation with A. J. Felt in the presence of Doctor Troughton, had said that he had shot Carman because he and the Carmans had had trouble, and Carman had threatened to kill him, and that he had shot Carman in self-defense. The refusal of the court to permit this question to be answered, and also the refusal of the court to permit the defendant to prove by other witnesses that Payne had made this statement, constitute the third and fourth assignments of error.
The only apparent reason for asking Payne this question was to lay the foundation for contradicting
It is also contended that the verdict of the jury is so uncertain in respect to the crime of which they found the defendant guilty that a legal sentence cannot be pronounced upon it. The defendant was. charged and tried under section 38 of the crimes act (Gen. Stat. 1901, § 2023), for having wilfully, feloniously, and of deliberate malice aforethought assaulted and beat William Payne with a deadly weapon, with intent to maim and kill him. The punishment provided for this offense is confinement in the penitentiary and hard labor for a term not exceeding ten years. The jury returned a verdict finding the defendant guilty of “an assault with intent to commit manslaughter, or other felony, under section 41, as charged in said information.” The punishment for this, offense is confinement in the penitentiary and hard labor not exceeding five years, or in a county jail not less than six months. The court im
Some other errors are assigned, but they are not sufficiently important to require special attention, further than to say that no error was committed in respect to them.
The judgment is affirmed.