In re Burns

• Decision Date: 03 March 1902
• Citation: 113 F. 987
• Parties: In re BURNS.
• Court: U.S. District Court — Western District of Arkansas

113 F. 987

In re BURNS.

United States Circuit Court, W.D. Arkansas, Fort Smith Division.

March 3, 1902

W. H Korniegay, for the petitioner.

James K. Barnes, U.S. Dist. Atty.

ROGERS District Judge.

The petitioner John W. Burns was indicted in the United States court for the Northern district of the Indian Territory for the crime of maiming, and upon plea of not guilty and trial the following verdict was rendered: 'We, the jury, find the defendant guilty of an assault with a deadly weapon. J W. Bird, Foreman,'-- and was sentenced by the court, upon that verdict, to be imprisoned in the United States jail situated at Ft. Smith, Ark., and to pay a find of $200 and costs. An exception was taken to the entry of that judgment upon the foregoing verdict. The indictment charged, in substance (omitting formal parts), that said Burns did feloniously, unlawfully, and with his malice aforethought discharge and shoot off a certain gun loaded with gunpowder and leaden bullets, towards, against, and into the right leg and body of one Homer Lay, and did then and there, by means of the said gun so loaded with gunpowder and leaden bullets as aforesaid, so discharged and shot off as aforesaid, towards, against, and into the right leg and body of him the said Homer Lay as aforesaid, wound and disable him, the Homer Lay, contrary to the form of the statute, etc.

By act of congress certain statutes of Arkansas were adopted in the Indian Territory, and among others the statute regulating the crime of maiming. Section 1594 of Mansfield's Digest of the Statutes of Arkansas (section 937, Ind. T. Ann. St.) reads as follows:

'If any person shall, from malice aforethought, shoot, stab, cut or in any manner wound and disable any person, he shall be deemed guilty of maiming.'

It could not be said that the verdict in this case was rendered under that statute, but it was rendered under section 1566 Mansf. Dig. (section 909, Ind. T. Ann. St.), under the head of 'Assault-- Battery-- Aggravated Assault--Assault with Intent to Murder,' which section reads as follows:

'If any person assault another, 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 disposition, he shall be adjudged guilty of a misdemeanor, and, on conviction, shall be fined in any sum not less than fifty nor exceeding one thousand dollars, and imprisoned not exceeding one year.'

It is provided by section 1564, Mansf. Dig. (sections 907, 908, Ind. T. Ann. St.), that simple assault shall be punished by fine not exceeding $100, and by the following section the crime of assault and battery is punished by fine not exceeding two hundred dollars; 'provided, this section shall not be construed to apply to assault and batteries of an aggravated character. ' All these sections of the statutes were put in force, by the act of congress referred to, in the Indian Territory, and were in force when foregoing verdict was rendered.

In Guest v. State, 19 Ark. 405, Guest was indicted under the same statute under which the defendant in the case at bar was indicted, and a verdict was rendered of 'an aggravated assault and battery.' In that case it was held that:

'Upon an indictment for a felony, the accused may be convicted of a misdemeanor where both offenses belong to the same generic class, where the commission of the higher may involve the commission of the lower offense, and where the indictment for the higher offense contains all these substantive allegations necessary to let in proof of the misdemeanor.'

See, also, Cameron v. State, 13 Ark. 712; State v. Cryer, 20 Ark. 64; State v. Nichols, 38 Ark. 551; Davis v. State, 45 Ark. 359.

I do not doubt the soundness of the principle announced in Guest v. State, supra, and especially is that true where a statute is in force such as is found in sections 2288 and 2289 of Mansfield's Digest of the Statutes of Arkansas (also in force in the Indian Territory,-- sections 1631, 1632, Ind. T. Ann. St.), where it is provided, in substance, that all injuries to the person, by maiming, wounding by an assault, whether malicious or from sudden passion, and whether attended or not with intent to kill, shall be deemed degrees of the same offense, and where one is indicted for an offense consisting of different degrees he may be found guilty of any degree not higher than that charged in the indictment, and may be found guilty of any offense included in that charged in the indictment. If, therefore, the jury in the case at bar thought that the defendant was guilty of an 'aggravated assault and battery,' that verdict would have sustained the sentence imposed in this case. But the jury did not find that the defendant was guilty of an 'aggravated assault and battery.' The jury found that he was guilty of an 'assault with a deadly weapon.' Is the one equivalent to the other? clearly not The words 'aggravated assault' have come to have a specific and definite meaning under the laws of Arkansas, and that was recognized in the case of Guest v. State. Guest v. State, supra, was decided prior to the passage of the act of congress adopting parts of Mansfield's Digest as the law of the Indian Territory, and by the decision of that court, interpreting its own statute, the courts in the Indian Territory should be bound in interpreting the same statute.

Section 1566 of Mansfield's Digest was taken from the Revised Statutes, and was enacted in 1838, and has been in force in Arkansas ever since, no change having ever taken place in it, except in the original act the crime was called a 'high misdemeanor,' whereas in the present statute, as adopted in the Indian Territory, the word 'high' is omitted. But the preceding section of Mansf. Dig. Sec. 1565 (also in force in the Indian Territory,-- sections 908, 909, Ind. T. Ann. St.), is as follows:

'Any person who shall be convicted of an assault and battery shall be fined in any sum not exceeding two hundred dollars: provided, that this section shall not be construed to apply to assaults and batteries of an aggravated character.'

The foregoing section of Mansfield's Digest, as it was originally enacted by the legislature of Arkansas, read, immediately after the words 'aggravated assault' at the end of that section as follows: 'In which the fine under existing laws could not be as low as ten dollars,'-- making the proviso read as follows: 'That this section shall not be construed to apply to assaults and batteries of an aggravated character, in which the fine under existing laws could not be as low as ten dollars. ' This act of January 6, 1857, makes use of the word 'aggravated' in connection with an assault for the first time in the statutes of Arkansas or the decisions of its courts, and it will be seen, by comparing the penalty fixed by this section of the statute, that the proviso could have no application whatever to any other assault known to the system of jurisprudence in Arkansas than that described in section 1566 (section 909, Ind. T. Ann. St.), for the reason that every other assault except that described in section 1566 might be punished by a fine of less than $10, while that described in section 1566 could not be punished by a fine of less than $50, and also involved imprisonment.

It may be observed in this connection that the case of Guest v State, supra, in which it was held that one indicted for the crime of mayhem might be convicted of an aggravated assault and battery, was decided in 1858, the year following the enactment of this statute. Why the language above referred to was omitted by the digesters in Gantt's Digest and in Mansfield's Digest I am not advised, but it would seem that the statute of January 6, 1857, by making use of the term 'aggravated,' and the subsequent decision of Guest v. State (1858), made it unnecessary to retain the language which was dropped in order to define what statute the proviso applied to. It may be also observed that the seventh paragraph of chapter 45 of Mansfield's Digest of the statutes of Arkansas (paragraph 7, c. 19, Ind. T. Ann. St.), is entitled 'Assault--Battery-- Aggravated Assault-- Assault with Intent to Murder. ' The words 'aggravated assault,' contained in this title, were never found in the digests of Arkansas prior to 1858. They appeared for the first time in Gantt's Digest of the Statutes compiled in 1874, and have been continued in all the subsequent digests. It may be also observed that the term...