Territory v. Conrad

• Decision Date: 30 June 1877
• Citation: 1 Dak. 363,46 N.W. 605
• Parties: Territory v. Conrad.
• Court: South Dakota Supreme Court

46 N.W. 605

1 Dak. 363

Territory

v.Conrad.¹

Supreme Court of the Territory of Dakota.

June Term, 1877.

Error to district court, Yankton county.S. L. Spink, for defendant in error.P. K. Faulk, Dist. Atty., for the Territory.

SHANNON, C. J.

The defendant was indicted and tried in the district court of Yankton county, for an assault upon and for shooting one Frank McMahon with a pistol, commonly known as a “revolver,” loaded with gunpowder and leaden bullets, with intent to kill.There was a preliminary motion on part of the defendant for a continuance.To the ruling of the court denying said motion, the defendant took an exception, which was abandoned, and is not contained in the assignment of error.The jury rendered the following verdict: “We, the jury, find the defendant guilty of assault with intent to do bodily harm, and without justifiable or excusable cause.”There was no motion for a new trial, or in arrest of judgment, and no step was taken to bring the evidence, or any part of it, within the record.The court, on May 1, 1877, sentenced the defendant to five years' imprisonment in the territorial prison, to which judgment the defendant immediately excepted; and thereupon a writ of error was allowed and a certificate of probable cause therefor given by the judge below, in pursuance of sections 473and479 of the Code of Criminal Procedure.The certificate was filed, and execution of the judgment was stayed, and the defendant is detained to abide the judgment of the supreme court, according to section 480, Id.

The sole exception before us is to the judgment itself.The only assignment of error is that the district court erred in pronouncing judgment as for a felony, and sentencing the defendant to confinement for five years in the penitentiary, upon the verdict of the jury, the verdict amounting only, as alleged, to finding the defendant guilty of a simple assault, which is a misdemeanor only.Our penal statutes on the subject, in force at the time of the commission of the offense, were the same as those now existing.Section 279 of the Penal Code(Rev. Codes, 769) prescribes that “every person who shoots or attempts to shoot at another with any kind of fire-arms, air gun, or other means whatever, with intent to kill any person, or who commits any assault and battery upon another by means of any deadly weapon, and by such other means or force as was likely to produce death, with intent to kill any other person, is punishable by imprisonment in the territorial prison not exceeding ten years.”This section is divisible, contains two clauses, and embraces two species of offense, punishable alike.The first relates alone to shooting or attempting to shoot at another with any kind of fire-arms, air gun, or other means whatever, with intent to kill any person.The indictment now before us was framed upon this first branch of the section, and charges an assault and a shooting “with a certain kind of fire-arms, to-wit, a pistol, commonly known as a ‘revolver,’ then and there loaded with gunpowder and leaden bullets,” with intent to kill him, the said Frank McMahon, charging the intent in proper words.The second branch of this section has reference to the commission of any assault and battery upon another by means of any deadly weapon, and by such other means or force as was likely to prodnce death, with intent to kill any other person.But the jury did not find the defendant guilty of the offense with the commission of which he stood charged.They inferentially acquitted him of that when they found him guilty of an assault “with intent to do bodily harm.”The jury may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged in the indictment, or of an attempt to commit the offense.SeeCode Crim. Proc. § 402.This court accordingly held, at the January term, 1876, in the case of People v. Odell, ante, 601, (Mr. Justice Bennett delivering the opinion,) on an indictment for shooting with a shot gun, with intent to kill, that a defendant“may be convicted either of the crime charged, or of an assault, or assault and battery, with intent to do bodily harm, or for assault and battery, or for a simple assault.”In that case, however, the verdict was, “Guilty as charged in the indictment.”No question did or could arise in it as to the proper form of a verdict, upon such an indictment, when the jury should conclude to convict only of the second grade, to-wit, under section 309 of the Penal Code.It has been argued by the counsel for the territory that the jury plainly intended to convict under this section; that the conviction is good under it; and that the judgment is valid.Let us examine this important question in the light of the statute itself.By section 309 of the Penal Code it is declared that “every person who, with intent to do bodily harm, and without justifiable or excusable cause, commits any assault upon the person of another with any sharp or dangerous weapon, or who, without such cause, shoots or attempts to shoot at another with any kind of fire-arms, or air-gun, or other means whatever, with intent to injure any person, although without intent to kill such person, or to commit any felony, is punishable by imprisonment in the territorial prison not exceeding five years, or by imprisonment in a county jail not exceeding one year.”This section is likewise divisible: First, every person who, with intent to do bodily harm although without intent to kill, etc., and without justifiable or excusable cause, commits any assault upon the person of another, with any sharp or dangerous weapon, is punishable, etc.; secondly, every person who, without such cause, shoots or attempts to shoot at another with any kind of fire-arms, or air gun, or other means whatever, with intent to injure any person, although without intent to kill such person, or to commit any felony, is punishable, etc.This second clause, except as to the intent and punishment, is almost the counterpart of the first branch of section 279, and both have special reference to shooting or attempting to shoot.The other clauses in the two sections have relation, not to shooting and fire-arms, but to other instrumentalities, viz., in the one case to deadly weapons or force, in the other to sharp or...