State v. Smith

• Decision Date: 07 October 1886
• Citation: 35 Kan. 618,11 P. 908
• Parties: THE STATE OF KANSAS v. WILLIAM SMITH
• Court: Kansas Supreme Court

11 P. 908

35 Kan. 618

THE STATE OF KANSAS v. WILLIAM SMITH

Supreme Court of Kansas

October 7, 1886

Appeal from Brown District Court.

PROSECUTION for an assault with intent to kill. Trial had in October 1885, when the defendant Smith was convicted of an assault only, and sentenced to pay a fine of $ 100 and the costs of the prosecution, and to be committed to the jail of Brown county until the sentence was complied with. The defendant appeals.

Judgment affirmed.

C. W Johnson, for appellant.

S. B Bradford, attorney general, for The State.

JOHNSTON J. All the Justices concurring.

OPINION

JOHNSTON, J.:

William Smith was charged with having, on January 31, 1885, beat and assaulted Samuel Snyder with a pistol with intent to kill him, and at a trial had in October, 1885, he was convicted of a simple assault. He appeals, and urges several objections to the conviction, the first of which is that the verdict is not supported by the evidence. We have looked into the evidence, and are of the opinion that the objection is not tenable. If the jury believed the witnesses for the state, they could do no less than convict. That an assault was made upon Snyder at the time charged, was practically conceded in argument, and cannot be doubted. He states that he went out in the dusk of the evening to do chores, and as he came out of his barn he was assailed by the defendant, who struck him, caught him by the whiskers, then drew a pistol or revolver and pointed it at him, when Snyder cried out in a loud voice, "Oh! oh! Bill," and the defendant then ran away. There is also testimony that for some time previous, the defendant entertained an ill feeling toward Snyder. It is also agreed that the defendant, in company with another young man, traveled along the road near Snyder's barn about the time of the assault. Another witness for the state claims to have seen the defendant and his companion leave the road and go toward the barn, and that very soon afterward the outcry by Snyder was heard. Then there was the correspondence of the tracks in the snow with the shoes worn by the defendant, and some other circumstances corroborative of Snyder's testimony. Of course there was testimony given in behalf of the defendant strongly contradictory of that offered by the state. The defendant and his companion, while admitting that they passed by Snyder's on the evening of the assault, flatly deny leaving the road or going upon Snyder's premises, or that the assault was made by defendant. Some other testimony was offered, tending to show that Snyder was mistaken as to the identity of the person who assaulted him. But the credit of the witnesses, as well as the conflict of the testimony, have been settled by the jury. The testimony of the state, taken alone, was clearly competent, and sufficient to sustain the verdict; that verdict has been approved by the trial court, and it is well settled that in such a case the verdict will not be disturbed by this court.

Counsel for defendant claims that the result reached by the jury is a "split verdict," and should for that reason be set aside. In his argument he says: "The evidence of one side or the other is true. If Snyder's is true, no simple assault was committed, but an outrageous battery; if the other, no assault was committed by William Smith; hence the evidence does not sustain the verdict of simple assault." There is testimony, it is true, that the defendant pulled Snyder's whiskers and struck him with a board, but the only battery charged in the information was that the defendant beat Snyder with a pistol or revolver. On...