State v. Lynch

• Citation: 20 Or. 389,26 P. 219
• Parties: STATE v. LYNCH.
• Decision Date: 23 March 1891
• Court: Supreme Court of Oregon

26 P. 219

20 Or. 389

STATE v. LYNCH.

Supreme Court of Oregon

March 23, 1891

Appeal from circuit court, Multnomah county; L.B. STEARNS, Judge.

The charging part of the indictment is as follows: "The said Tony Lynch, on the 20th day of October, A.D. 1890, in the county of Multnomah and state of Oregon, was armed with a dangerous weapon, namely, a pistol loaded with gunpowder and leaden balls, and, being so armed with such dangerous weapon aforesaid, did then and there unlawfully and feloniously assault one James Brown with such dangerous weapon by then and there shooting at him, the said James Brown, with said loaded pistol, with intent him, the said James Brown, to then and there kill and murder." A general demurrer to this indictment was interposed and overruled. Upon a trial the jury found the defendant guilty as charged in the indictment and be was sentenced to the penitentiary, from which judgment he has appealed to this court.

H. E McGinn, A.F. Sears, Jr., and N.D. Simon, for appellant.

T.A Stevens, Dist. Atty., and W.T. Hume, for the State.

STRAHAN C.J., (after stating the facts as above.)

There was but one question presented upon the argument that we deem necessary to notice, and that is the sufficiency of the indictment. The appellant's contention is that the indictment is fatally defective for the reason that it fails to charge that the assault was made maliciously, or of deliberate and premeditated malice, and this is the only question necessary to be decided. The indictment is founded on section 1740, Hill's Code, which is as follows "If any person shall assault another with intent to kill, to rob, or to commit a rape upon such other," etc. The indictment charges that the assault was made upon the prosecutor "with the intent him, the said James Brown, to then and there kill and murder." It may be safely conceded that the authorities are not uniform on this subject, and probably the weight of authority is with the appellant; but in State v. Doty, 5 Or. 491, a conviction was upheld upon an indictment for this crime which certainly was not drawn with as much technical accuracy as the one now before the court. After disposing of some other questions presented in that case the court said: "But we do not think it can be maintained that this indictment does not charge a crime within the meaning of subdivision 4, § 123, of the Criminal Code. The charge is in the language of the statute, and the legal signification of the term 'assault with intent to kill' implies the unlawful and felonious attempt to...