State v. Schleagel

• Decision Date: 07 January 1893
• Citation: 31 P. 1105,50 Kan. 325
• Parties: THE STATE OF KANSAS v. JOHN SCHLEAGEL
• Court: Kansas Supreme Court

31 P. 1105

50 Kan. 325

THE STATE OF KANSAS v. JOHN SCHLEAGEL

Supreme Court of Kansas

January 7, 1893

Decided January, 1893.

Appeal from Rush District Court.

THE facts sufficiently appear in the opinion, filed January 7 1893.

Judgment reversed and case remanded.

Lewis & Fierce, S. I. Hale, Andrews & Anderson, and J. W McCormick, for appellant:

The court should have permitted defendant, when testifying as a witness in his own behalf, to testify that in a difficulty between these same parties, on the 26th day of November Henry Scheurman, the injured party in this trouble, had used a weapon on defendant. The sole defense of the defendant is self-defense, and, when he used his knife on Scheurman, he did so believing it was necessary to prevent Scheurman from killing him with a like weapon, which he believed Scheurman was about to get from his pocket. The case of The State v. Scott, 24 Kan. 68, is in point as authority in support of this position.

The court erred also, in not permitting the witness John Henry Schleagel to testify to the general reputation of defendant in the neighborhood where he resided, as to his being a peaceable and law-abiding citizen. Such testimony is always competent in a criminal case like this one.

The court erred in giving certain instructions. The information charges the offense of assault with intent to kill, which may properly be termed a felonious assault. In fact, any assault made with intent to commit a felony is a felonious assault. But our legislature has not defined "felonious assault," nor has it enacted that, if anyone shall do or perform certain specified acts, he shall be deemed guilty of a "felonious assault." Had it done so, and such acts were necessarily included in the charge of assault with a deadly weapon, with intent to kill, then it would be proper for a court to charge, in a prosecution under an information like the one in this case, that if the jury failed to find the defendant guilty of assault with intent to kill, as charged, then in that event he might be convicted of a "felonious assault;" but where the legislature has not defined the term, nor specified the acts which constitute the offense, and the court charges the jury, as it did in this case with reference to a "felonious assault," in the instructions complained of, such instructions are erroneous, indefinite, uncertain, and misleading.

T. F. Mulroy, county attorney, and G. P. Cline, for The State:

If the facts in this case were the same as in the case of The State v. Scott, 24 Kan. 68, it would be directly in point.

It is contended, on behalf of the appellant, that the court erred in not permitting the witness John Henry Schleagel to testify as to the general reputation of defendant in the neighborhood where he resided, as to his being a peaceable and law-abiding citizen. In some cases and under some circumstances this might have been material error; but, under the circumstances of this case, the error, if any, was harmless, and therefore no complaint can be made. Pate v. Fitzhugh, 46 Kan. 129; Parker v. Richolson, 46 id. 283.

There are several kinds of assaults, to wit: Assault with intent to kill, assault with intent to do great bodily harm, the simple assault, and various other kinds, each having its own peculiarities. 4 Bl. Com. 205; 2 Bish. Cr. L. (4th ed.), § 969; Crimes Act, §§ 37, 38, 43. The information is broad enough to include any of the assaults aforesaid.

Under the charge set forth in the information, the defendant could have been found guilty of assault with intent to kill, or of any other assault or offense of that nature. It would have been more formal to have specified the particular kind of assault, but in a case like this the substance is not to be destroyed by the form. Crim. Code, § 293.

VALENTINE, J. All the Justices concurring.

OPINION

VALENTINE, J.:

This was a criminal prosecution in the district court of Rush county, upon an information in which the defendant, John Schleagel, was charged with committing an offense as follows:

"One John Schleagel did then and there unlawfully, feloniously make an assault with a deadly weapon, to wit, a knife, which said knife, he, said John Schleagel, then and there held in his hand, in and upon Henry Scheurman, unlawfully, feloniously, and willfully, and, with malice aforethought, did stab and wound him, said Henry Scheurman, with the intent then and there the said Henry Scheurman to kill and murder."

The case was tried before the court and a jury, and the jury rendered the following verdict, to wit:

"We, the jury impaneled and sworn in the above-entitled case, do, upon our oaths, find the defendant, John Schleagel, guilty of felonious assault."

Upon this verdict, the court below rendered a judgment sentencing the defendant to be imprisoned in the penitentiary at hard labor for the term of one year; and the defendant appeals to this court. The defendant claims that the court below erred in impaneling the jury; in refusing to permit certain evidence to be introduced on the trial; in instructing the jury; in refusing to grant a new trial, and in sentencing the defendant upon the verdict of the jury. Passing over the first alleged error, we shall first consider the alleged error, or rather errors, of the court in refusing to permit the defendant to introduce certain evidence. The evidence introduced was to some extent conflicting, but there was evidence introduced tending to show, among others, the following facts: A difficulty arose, and a fight occurred between the defendant, John Schleagel, and another person by the name of Henry Scheurman, in a certain storeroom in the town of Otis, in Rush county. Scheurman was the larger and the...