Smith v. State
| Citation | 78 N.W. 1059,58 Neb. 531 |
| Parties | SMITH v. STATE. |
| Decision Date | 03 May 1899 |
| Court | Supreme Court of Nebraska |
OPINION TEXT STARTS HERE
Syllabus by the Court.
1. The effect of section 17b of the Criminal Code, relative to an assault with intent to inflict great bodily injury, was to create a new and substantive crime,--one purely statutory; and it is sufficient, in an information, to charge the crime in the language of the statute, without a statement of the means with which the assault was committed. Smith v. State, 52 N. W. 572, 34 Neb. 689;Murphey v. State, 61 N. W. 491, 43 Neb. 34.
2. The term “assault,” used without qualification, has a clear and established import in criminal law.
3. Whether the particular intent elemental of a charge of assault with intent to inflict great bodily injury has been shown, is generally a question of fact for the jury.
4. It is not available matter of complaint, for a person at whose request a jury has been instructed on a specific point, that the court gave an instruction on his own motion on the same subject.
5. The verdict held not warranted and sustained by the evidence.
Error to district court, Butler county; Sedgwick, Judge.
Clinton Smith was convicted of assault with intent to do great bodily injury, and brings error. Reversed.E. R. Dean, for plaintiff in error.
C. J. Smyth, Atty. Gen., and W. D. Oldham, Dep. Atty. Gen., 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 in 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 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....
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