State v. Johnson
| Decision Date | 21 February 1893 |
| Parties | STATE v. CHARLES JOHNSON |
| Court | North Dakota Supreme Court |
Error to District Court, Cass County; McConnell, J.
Charles Johnson was indicted for assault with intent to kill. The Jury found him guilty of assault with intent to do bodily harm. He was sentenced for the first named crime, and brings error.
Judgment modified.
Taylor Crum, for plaintiff in error.
Robt. M. Pollock, State's Attorney, for defendant in error.
Plaintiff in error was tried and convicted in the District Court upon an information charging him, in effect, with feloniously committing an assault and battery, while armed with a deadly weapon, "with intent to kill." The verdict is as follows: "We, the jury, find the defendant guilty of the crime of assault and battery with intent to do bodily harm as charged in the information, and recommend him to the mercy of the court." When the prisoner was brought into court for sentence, his counsel appeared and objected to any sentence being pronounced against the prisoner for "any other or higher grade of offense than simple assault." This objection was overruled, and an exception was taken to the ruling. The court then sentenced the prisoner to a term of eight months in state's prison, an exception being saved to the sentence. The contention in this court is confined to the one question of the legality of the sentence, and the question presented is this: Did the verdict justify a sentence for felony, or should the punishment have been limited to a sentence for a simple assault, or assault and battery? A solution of this question will involve an examination of the information and the verdict, and these must be considered with reference to certain sections of the Penal Code. It is conceded that the information upon which the accused was tried was framed under that part of § 6479 of the Comp Laws § 279 of the Penal Code) which provides that any person "who commits any assault and battery upon another by means of any deadly weapon, and by such other means or force as was likely to produce death, with intent to kill any other person, is punishable by imprisonment in the territorial prison, not exceeding ten years." As has been seen, the verdict, in terms, finds the accused guilty of "an assault and battery with intent to do bodily harm as charged in the information." It is obvious that the legal effect of this verdict is to acquit the prisoner inferentially of the specific offense charged against him in the information, viz: the offense of assault and battery with intent to kill, and the question then presented is whether the verdict will justify the sentence actually pronounced against the prisoner. It is clear that the sentence cannot be sustained under the section upon which the information was drawn, § 6479, Comp. Laws,) for the reason, as has been stated, that the effect of the verdict is to find the accused not guilty of the crime defined and punished by that section; nor can the conviction be sustained under § 6480, Id., which provides for the punishment of "assaults with intent to kill" which are not punishable under § 6479. The plaintiff in error has not been charged with the crime of committing an assault with intent to commit a felony "other than assaults with intent to kill;" hence the conviction cannot be upheld under § § 6491, 6492, Comp. Laws. It is contended, however, in behalf of the state, that the sentence is valid as a conviction for an offense defined by § 6510, Comp. Laws, § 309, Penal Code,) which provides that "every person who, with intent to do bodily harm, and without justifiable and excusable cause, commits any assault upon the person of another with any sharp or dangerous weapon, * * * is punishable by imprisonment in the territorial prison," etc. It is well settled at common law that a defendant in a criminal case may be convicted of any offense "included" in the offense charged by the indictment. This principle has been embodied in § 7429, Comp. Laws, (§ 402, Code Crim. Proc.) which reads: "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." Under a similar statute of the State of Iowa, the Supreme Court of that state, upon rehearing, overruled the original opinion of the court as written by Chief Justice Miller, and held that, "upon the trial of an indictment for an assault with intent to commit murder, the defendant may be convicted of an assault with an intent to commit manslaughter." State v. White, 41 Iowa 316, 320; followed in State v. Connor, 59 Iowa 357, 13 N.W. 327. The principle has frequently been applied, under statutes similar to those in this state,...
To continue reading
Request your trial