State v. Child
| Decision Date | 07 December 1889 |
| Citation | 42 Kan. 611,22 P. 721 |
| Parties | THE STATE OF KANSAS v. HAROLD CHILD et al |
| Court | Kansas Supreme Court |
Appeal from Chautauqua District Court.
THIS is an appeal from a conviction for a felonious assault alleged to have been committed in the county of Chautauqua on November 18, 1887, upon the person of Willie Watson. The indictment upon which the prosecution was had is in the following language:
"Of the February term of the district court of Chautauqua county in the year of our Lord one thousand eight hundred and eighty-eight, the grand jury duly impaneled and sworn in and for said county of Chautauqua for said February term, 1888 in the name and by the authority of the state of Kansas, upon their oaths present that one Harold Child, and Lee Bowman and John Child, on the eighteenth day of November, in the year of our Lord one thousand eight hundred and eighty-seven, in said county of Chautauqua and state of Kansas, and upon one Willie Watson, then and there being, did on purpose and of malice aforethought, unlawfully and feloniously assault him, the said Willie Watson, and did then and there with, to wit, two certain revolving pistols, shoot at him, the said Willie Watson, and did then and there on purpose and of malice aforethought, unlawfully and feloniously beat and wound him the said Willie Watson, upon the head and body of him, the said Willie Watson, with a certain revolving pistol held in the hands of them, the said Harold Child, John Child and Lee Bowman, the said pistol being then and there a deadly weapon and by means of such blows, purposely and of malice aforethought, unlawfully and feloniously struck on the head of him, the said Willie Watson, the said Harold Child, John Child and Lee Bowman, did unlawfully and feloniously wound him, the said Willie Watson; contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of Kansas."
In its charge to the jury the court gave the following instruction:
"Before you will be justified in finding the defendants, or either of them, guilty in this action, you must be satisfied from the evidence beyond a reasonable doubt, that they did, in this county, on the 18th day of November, 1887, on purpose and of malice aforethought, unlawfully and feloniously assault Willie Watson with a deadly weapon, to wit, with two revolvers, with intent to unlawfully and feloniously kill or maim, as charged in the indictment filed in this case against them."
The jury returned the following verdict:
"We, the jury impaneled and sworn in the above-entitled cause, do upon our oaths find the defendants Harold Child and Lee Bowman guilty of a felonious assault, as charged in the indictment."
At the March term, 1889, motions for a new trial and an arrest of judgment were overruled, and the court sentenced the defendant Harold Child to imprisonment at hard labor for four years, and the defendant Lee Bowman to like imprisonment for five years. The defendants have appealed to this court.
Judgment reversed and remanded.
J. D. McCue, for appellants.
L. B. Kellogg, attorney general, for The State; John W. Shartel, of counsel.
OPINION
The court charged the jury that before they could find the defendants guilty, they must be satisfied that they had made the assault with "intent to unlawfully and feloniously kill or maim, as charged in the indictment filed in this case against them." The assumption of the court that the indictment charged an intent to unlawfully kill or maim, is not borne out by an examination of that pleading. While it charges that an assault was feloniously made with a deadly weapon, it fails to allege a specific intent to kill maim, ravish, or rob, or any other intent necessary to constitute the crime of which the defendants were convicted. The indictment sufficiently alleges an assault, which is a misdemeanor, but it omits the allegation of intent, which makes...
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