People v. Odell

Decision Date31 December 1875
PartiesPeople v. Odell.
CourtSouth Dakota Supreme Court

OPINION TEXT STARTS HERE

Error to district court, Yankton county.G. C. Moody, S. L. Spink, Bartlett Tripp, and S. H. Gruber, for plaintiff in error. J. R. Gamble, Dist. Atty., for the People.

BENNETT, J.

1. We are all of opinion that the motion in arrest of judgment was properly overruled. The indictment is sufficient. There are three counts,-two charge substantially an assault, or assault and battery with intent to kill, and the third with intent to kill and murder. Admitting that there is no such crime known to our statute, as an assault with intent to murder, the count containing the charge of an intent to kill, the addition of “and to murder,” would be mere surplusage, and therefore immaterial. But there remains two counts against which this cannot be urged, and if there is one count sufficient to sustain the judgment, it will not be reversed on the ground that there is one that is bad. Brugier v. United States, ante, 502. The objection that the indictment was found by a grand jury of the county of Yankton, and not of the subdivision of the territory which includes the county of Yankton, is not well taken. The statute creating subdivisions provides that all causes shall be entitled, and process run, in the name of the county in which the court is held, and we know of no statute that provides for a grand jury, to be known as the grand jury of a subdivision. We need only say on the question as to the verdict that it is in proper form. The charge in the indictment is single, plain, and explicit, and when the jury say we find the defendant guilty, as charged in the indictment, it is as certain and unequivocal as if they had named the crime of which they convicted him.

2. The first assignment of error, and which has been strenuously urged by counsel for defendant, is the exclusion of the evidence of the intoxication of defendant. It would seem that the court below held to the opinion that the crime with which defendant was charged was not by statute divided, and from its nature was not divisible into degrees; and that, if the jury found that the assault or assault and battery was made with a deadly weapon, defendant could not be convicted of a simple assault and battery, there being no such a crime known to the law as a simple assault or assault and battery with a deadly weapon. This question becomes material, when we come to consider it in connection with section 17, Pen. Code, which reads as follows: “No act when committed by a person in a state of voluntary intoxication is less criminal by reason of his having been in such condition. But when the actual existence of any particular purpose, motive, or intent is a necessary element to constitute any particular species or degree of crime, the jury may take into consideration the fact that the accused was intoxicated at the time, in determining the purpose, motive, or intent with which he committed the act.” In cases of homicide evidence of intoxication is admitted to be considered by the jury in connection with all the testimony in determining the degree of the crime, and the statute above quoted is but the embodiment of the general doctrine. Judge Denio, in delivering the opinion of the court in the case of People v. Rogers, 18 N. Y. 9, uses the following language: “It must generally happen in homicides committed by drunken men that the condition of the prisoner would explain or give character to some of his language, or some part of his conduct, and therefore I am of opinion that it would never be correct to exclude the proof altogether.” If admissible in cases of homicide, there can be no good reason why it should not be in all crimes which the statute divides into degrees, or which are clearly so divided by inferential construction, and such is unquestionably the intent of the statute. Is the crime with which defendant is charged susceptible of division into degrees; that is, does it necessarily embrace other crimes? We are of opinion that it does. State v. Shepard, 10 Iowa, 126. That the man who commits the crime of an assault and battery with intent to kill, ex necessitate has also committed the lesser offenses of an assault, assault and battery, and an assault with intent to do bodily harm, and when charged with the higher might be convicted of either of the lower. Section 402 of the Code of Criminal Procedure, provides that “the jury may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged in the indictment, or of any attempt to commit the offense.” In the case of People v. English, 30 Cal. 214, the defendant was charged with “an assault with a pistol, with intent to kill and murder,” and the jury found him “guilty of an assault with a deadly weapon with intent to inflict a bodily injury,” and the court say: “The offense for which the defendant was indicted was of a higher grade than that for which he was convicted, still, as the offense of which he was found guilty is included in the crime with which he was charged, the verdict is to be followed by the same consequences that would have attended it had the indictment charged the lesser offense in terms.” In the case of Beckwith v. People, 26 Ill. 500, “the indictmentwas for an assault with an axe and a butcher knife with intent to commit murder,” and the verdict was “guilty of an assault with a deadly weapon with intent to inflict a bodily injury.” The court say: “ The rule of law is that where an indictment charges many acts, with certain aggravations, constituting a high crime, the jury may convict the prisoner of a lesser crime, consisting of only a portion of those acts, or with aggravation. The question here presented, then, is, does the charge of an assault with a deadly weapon, as an axe or a butcher knife, with intent to commit murder, embrace an assault with a deadly weapon, with intent to commit a bodily injury? Or, still more to simplify the proposition, does a murder embrace within it a bodily injury? When a case of murder is pointed out, without a bodily injury, we may begin to doubt; till then we cannot.” After a very full and able examination of the question, the same doctrine is held by the supreme court of Pennsylvania in the case of Hunter v. Com., (decided November, 1875,) 6 Pittsb. Leg. J. (N. S.) 53. And this, too, notwithstanding a statute that makes a party charged with the commission of a misdemeanor a competent witness in his own behalf,-a privilege not accorded to one charged with a felony; a fact bordering very closely on the reason for the old English rule that would not permit a conviction for a misdemeanor under an indictment for a felony. When a count in an indictment contains a divisible averment, it is the province of the jury to discriminate and find the divisible offense; and this distinction runs through the whole criminal law. It is enough to prove so much of the indictment as shows that the defendant has committed a substantial crime therein specified, or one that is necessarily included in, and forms a constituent element of, the higher offense charged. It therefore seems to be the settled law that a defendant tried on...

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29 cases
  • Thompson v. State
    • United States
    • Wyoming Supreme Court
    • 10 Diciembre 1929
    ...on Sunday was not error. Jones v. Johnson, 61 Ind. 257; State v. McGimsey, 80 N.C. 376; State v. U.S. 167 U.S. 178; People v. Odell, 1 Dak. 197, 46 N.W. 601; Ann. Cas. note page 14; Sec. 5773, W. C. S. 1920; Sec. 5731, W. C. S. 1920; Anderson v. Matthews, 8 Wyo. 307-312; Jones v. Bowman, 10......
  • State v. Winckler
    • United States
    • South Dakota Supreme Court
    • 16 Diciembre 1977
    ...Simple assault is an essential criminal element in this allegation. 5 See State v. Grimes, S.D., 237 N.W.2d 900 (1976); People v. Odell, 1 Dak. 197, 46 N.W. 601 (1875). Assault is defined as "any willful and unlawful attempt or offer, with force or violence, to do a corporal hurt to another......
  • Commonwealth v. Hagenlock
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • 18 Septiembre 1885
    ...67; Kelly v. Com., 1 Grant, Cas. 484; Keenan v. Com., 44 Pa.St. 55; Jones v. Com., 75 Pa.St. 403; Colbath v. State, 2 Tex.App. 391;People v. Odell, 1 Dak. 197; Lanergan v. People, 6 Parker, 209; People v. Batting, 49 How.Pr. 392;State v. Edwards, 71 Mo. 324;State v. Harlow, 21 Mo. 446;State......
  • Goings v. United States
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • 24 Abril 1967
    ...generally instructing in conformance with the South Dakota statute. State v. Kapelino, 20 S.D. 591, 108 N.W. 335. See also People v. Odell, 1 Dak. 197, 46 N.W. 601 and State v. Ford, 16 S.D. 228, 92 N.W. 18. This was permissible and although not as specific as defendant's request or as othe......
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