State v. Kelly

• Decision Date: 24 March 1902
• Parties: STATE v. KELLY.
• Court: Oregon Supreme Court

68 P. 1

41 Or. 20

STATE v. KELLY.

Supreme Court of Oregon

March 24, 1902

Appeal from circuit court, Marion county; George H. Burnett, Judge.

John Kelly was convicted of an assault with a dangerous weapon and appeals. Affirmed.

J.E. Jeffery and M.E. Pogue, for appellant.

John A McNary, for the State.

WOLVERTON J.

This is a criminal prosecution on an information of the district attorney. The defendant was charged with the crime of assault with the crime of assault with intent to kill, and convicted of an assault with a dangerous weapon. The charging part of the information is as follows: "The said John Kelly on the 15th day of June, 1901, in the county of Marion and the state of Oregon, then and there being armed with a dangerous weapon, to wit, a pistol loaded with powder and ball, did then and there unlawfully and feloniously assault one Frank Lambert with said dangerous weapon, with intent him, the said Frank Lambert, to kill with said dangerous weapon, by then and there unlawfully and feloniously shooting and wounding the said Frank Lambert, contrary to the statutes," etc. After the verdict the defendant moved for a judgment of acquittal, and it is now contended (1) that the information is insufficient to charge the crime of an assault with intent to kill; and (2) that the shooting having been admitted by the defendant, and he having sought to justify the act on the ground of self-defense, but one of two verdicts could have been found, namely, guilty as charged or not guilty. Touching the insufficiency of the information it is urged (1) that the venue is not sufficiently laid, for that the words "then and there being armed," etc., refer to the date of the information, and not to the time the act is alleged to have been committed; (2) that the acts constituting the alleged assault are not sufficiently stated, being, as stated, a mere conclusion of law, and because the words "shooting and wounding the said Frank Lambert" qualify and attend the words "to kill," rather than the allegation of assault; and (3) that it is not alleged that the assault was purposely and maliciously done. Of these in their order: It is usual, and perhaps requisite, that the time and place should qualify or be added to every alleged fact in an information or indictment for felony. Nicholson v. State (Ala.) 54 Am.Dec. 168; State v. Thurstin (Me.) 58 Am.Dec. 695. The information herein comes up to the full measure of the law. "Then and there being armed with a dangerous weapon" refers indisputably to "the 15th day of June, 1901." This is evidently the date upon which it is alleged the crime was committed, as it is subsequently averred that he "did then and there unlawfully and feloniously assault," referring back to the same language, fixing the day as its antecedent so that the specific objection is not well taken. The second criticism is also without efficacy. The manner of the assault is alleged as being "with said dangerous weapon, with intent to kill," etc., "by then and there unlawfully shooting and wounding said Frank Lambert." The statute requires a statement of the acts constituting the offense in ordinary and concise language, without repetition and in such a manner as to enable a person of common understanding to know what is intended. Hill's Ann.Laws, subd. 2, § 1268. Measured by this standard, the indictment is not open to this criticism. People v. Ah Woo, 28 Cal. 205. The next objection is fully met by former decisions of this court. State v. Doty, 5 Or. 491: State v. Lynch, 20 Or. 389, 26 P. 219. By these the court is committed to the doctrine that it is unnecessary, in an indictment for a like offense to that charged herein, to allege that the act was purposely and maliciously done, or with premeditation or malice aforethought. In the latter case the majority of the court felt bound solely upon the ground of stare decisis, referring to the former; at the same time suggesting that it was not supported by the better authority. We are bound upon the same principle, if by none other, and do not feel warranted in disturbing the precedent.

This brings us to the second contention. It has been determined that a person charged under section 1740, Hill's Ann.Laws, with an assault with an intent to kill, may be convicted under section 1744 of an assault, being...