State v. McLennen

• Decision Date: 06 February 1888
• Parties: STATE v. MCLENNEN.
• Court: Oregon Supreme Court

16 P. 879

16 Or. 59

STATE v. MCLENNEN.

Supreme Court of Oregon

February 6, 1888

Appeal from circuit court, Wasco county.

Bennett & Wilson, for appellant.

Ramsey & Bingham and W.R. Ellis, for respondent.

STRAHAN J.

The defendant was convicted of the crime of "an assault with a dangerous weapon," upon an indictment the charging part of which is as follows: "The said Kenneth McLennen did on the sixth day of March, 1887, in the county of Wasco and state of Oregon, unlawfully and feloniously assault one Thomas Moran with a revolver loaded with powder and ball, by shooting him, the said Thomas Moran, in and upon the body and shooting at him, the said Thomas Moran, all with the intent to kill him, the said Thomas Moran, with the said revolver, a dangerous weapon, which the said Kenneth McLennen then and there held in his hand, being then and there within shooting distance of him, the said Thomas Moran contrary to the statute," etc. Upon the trial, the jury returned the following verdict: "We, the jury in the above-entitled action, find the defendant guilty of the crime of an assault with a dangerous weapon. B.W. MCINTOSH Foreman." The defendant moved to set aside the verdict because it was against law, but the court overruled the motion, and sentenced the defendant to imprisonment in the penitentiary of Oregon for the term of one year; from which judgment he has appealed to this court.

1. The only question presented or argued on this appeal was whether or not this conviction could be sustained. The indictment is drawn under section 1740, Hill's Code, which provides that "if any person shall assault another, with the intent to kill, rob, or to commit a rape upon such other *** such person, upon conviction thereof, shall be punished," etc. The jury evidently aimed to convict the defendant of the crime defined in section 1744, Hill's Code. That section provides: "If any person, being armed with a dangerous weapon, shall assault another with such weapon, such person, upon conviction thereof, shall be punished," etc. "An assault is any unlawful physical force, partly or fully put in motion, creating a reasonable apprehension of immediate physical injury to a human being; as raising a cane to strike him, pointing in a threatening manner a loaded gun at him, and the like." 2 Bish.Crim.Law, § 23. Or, more tersely, an assault is thus defined by Wharton: "An assault is an intentional attempt to do an injury to another." 2 Whart.Crim.Law, § 1241. Under section 1740, supra, the offense made punishable is compounded, and consists of two elements: (1) An assault and (2) the intent to kill. Under section 1744, supra, the offense is also a compound one, the elements being (1) that the defendant was armed with a dangerous weapon; (2) that he assaulted another with such weapon. If the intent with which the assault is alleged to have been made were stricken out of this indictment, or if it were rejected as surplusage, the indictment would still contain enough to constitute an offense under section 1744. In such case no sufficient reason is perceived why the conviction ought not to be sustained, or that it violates any principle of law.

Such it is believed has been the general practice in this state ever since the adoption of the Code of Criminal Procedure. Nor are authorities wanting to sustain this practice. In State v Robey, 8 Nev. 312, it was held that an indictment for an assault with an intent to kill, by shooting with a shotgun loaded with bullets, would sustain a conviction for an...