Allen v. People of State
| Decision Date | 30 September 1876 |
| Parties | JAMES H. ALLENv.THE PEOPLE OF THE STATE OF ILLINOIS. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
WRIT OF ERROR to the Circuit Court of Lake county; the Hon. THEO. D. MURPHY, Judge, presiding.
Mr. ALLAN C. STORY, for the plaintiff in error.
This was an indictment, in the circuit court of Lake county, against the plaintiff in error, under section 25, chapter 38, Revised Statutes of 1874, page 355, which provides that “an assault with a deadly weapon, instrument or other thing, with intent to inflict upon the person of another a bodily injury, where no considerable provocation appears, or where the circumstances of the assault show an abandoned and malignant heart, shall subject the offender to a fine not exceeding $1000, nor less than $25, or imprisonment in the county jail for a period not exceeding one year, or both, in the discretion of the court.”
The second count of the indictment under which the defendant was convicted avers that, on a certain day and year, the defendant, at and in the county aforesaid, with a deadly weapon, to-wit: a certain pistol, upon the person of one Charles Davidson, with force and arms, did then and there unlawfully make an assault with the intent then and there unlawfully to inflict upon the person of the said Charles Davidson a bodily injury, no considerable provocation then and there appearing, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the people of the State of Illinois.
It is insisted by the defendant that the indictment is insufficient to sustain the judgment; that the pleader was bound not only to aver that the pistol was a deadly weapon, but he was required to state facts which would of themselves show the instrument with which the assault was made to be a deadly weapon. The averment in the indictment is specific that the assault was made with a deadly weapon--a pistol; and we can not well understand that anything more could be required of the pleader. To aver that the pistol was loaded, or that it was an instrument of such size and weight as to be a deadly weapon, in the hands of a strong man, who might desire to use it for the purpose of striking a blow, would be, in effect, pleading the evidence which was necessary to be introduced on the trial in order to obtain a conviction. When the pleader averred that the assault was made with a certain instrument, and averred that instrument to be a deadly weapon, the demands of the law were fully answered.
The case of The State v. Seaman, 1 Green, 418, is in point, where the Supreme Court of Iowa held an indictment good where it alleges the assault to have been made with a deadly weapon, without any other description of the instrument.
But if there was any doubt in regard to the question, that provision of our criminal code which declares that every indictment shall be deemed sufficiently technical...
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