Smith v. State
| Citation | 78 N.W. 1059,58 Neb. 531 |
| Decision Date | 03 May 1899 |
| Docket Number | 10603 |
| Parties | CLINTON SMITH v. STATE OF NEBRASKA |
| Court | Supreme Court of Nebraska |
ERROR to the district court for Butler county. Tried below before SEDGWICK, J. Reversed.
REVERSED AND REMANDED.
E. R Dean, for plaintiff in error.
C. J Smyth, Attorney General, and W. D. Oldham, Deputy Attorney General, for the state.
An information was filed in the district court of Butler county which contained two counts, in the first of which the plaintiff in error was charged with an assault upon Charles T. Jenkins with intent to kill and murder him, and in the second count the accusation was of an assault upon the same person with intent to do him great bodily injury. The accused on arraignment pleaded not guilty, and a trial resulted in a verdict of his guilt of the charge in the second count of the information and not guilty as to the first. The sentence was of imprisonment in the penitentiary for a term of one year.
It is urged that the information is insufficient; this refers to the count of the charge of which the accused was determined guilty. The offense was charged in the language of the statute. The exact question here raised was under consideration and was the subject of decision by this court in the case of Murphey v. State, 43 Neb. 34, 61 N.W. 491, and it was then announced that a complaint in which the offense was alleged in the language of the statute was sufficient. We are now satisfied that the correct rule was then stated and will adhere to it.
It is argued that the section 17b of the Criminal Code, upon which the prosecution was based, is defective, in that in outlining the offense the word "assault" is used and the acts which will constitute it are not set forth; and further, that an "assault" is not specifically defined in our Code. The word "assault" has an exact and well-known general import when used in the sense in which it appears in the section of the Criminal Code to which reference has been made. The applicable definition is given in the text-books on criminal law and the law dictionaries. The signification which it has in criminal law is the one which must be accorded it in the portion of the statutes herein drawn into actual use.
It is contended that the trial court erred in the submission in its instructions to the jury of the question of the guilt or innocence of the accused of the crime charged in the first count of the information, for the reason that there was no evidence which tended to support the allegations of said first count. For the accused there was requested and given an instruction which challenged the attention of the jury to the guilt or innocence of the party on trial of the crime alleged in the first count of the information. This being true, he cannot be heard to complain that the court directed the attention of the jury to the same subject. (Richards v. Borowsky, 39 Neb. 774, 58 N.W. 277; Jonasen v. Kennedy, 39 Neb. 313, 58 N.W. 122; City of Omaha v. Richards, 49 Neb. 244, 68 N.W. 528.)
It is strenuously urged that the evidence is insufficient to sustain the verdict. Relative to the main elemental facts of the occurrences upon which the charge of the information was predicated there was no conflict in the evidence, but of some of the incidents or acts there were disagreements or differences. We have given the evidence a careful examination and do not deem it necessary to quote from it or summarize all of it here. We...
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