State v. Johnson , 99 Kan. 850 ( 1917 )

The opinion of the court was delivered by

Burch, J.:

The defendant was convicted of assault with intent to maim, in violation of section 38 of the crimes act (Gen. Stat. 1909, § 2526), and appeals.

The court submitted to the jury four forms of verdict under the section referred to, which reads as follows :

“Every person who shall, on purpose and of malice aforethought, shoot at or stab another, or assault or beat another, or assault or beat another with a deadly weapon, or by any other means or force likely to produce death or great bodily harm, with intent to kill, maim, ravish or rob such person, or in the attempt to commit any burglary or other felony, or in resisting the execution of legal process, shall be punished by confinement and hard labor for a term not exceeding ten years.”

The forms of verdict covered assault with intent to kill, assault with intent to maim, shooting with intent to kill, and shooting with intent to maim. The verdict returned reads as follows:

“We, the jury empaneled and sworn in the above entitled case, do upon our oath find the defendant, Joseph Johnson, guilty of assault with intent to maim W. A. Bettis, in violation of section 2526 of the General Statutes of Kansas, 1909, as charged and set forth in the information.”

The instructions were that section 38 requires the acts charged to be committed on purpose and of malice aforethought, and in all other respects the instructions were unimpeachable. The forms of verdict relating to shooting with intent to kill and shooting with intent to maim contained the words, “on purpose and of malice aforethought.” The forms relating to assault did not. It is said the court erred in submitting to the jury the forms of verdict relating to assault, and in rendering judgment on the verdict which was returned.

The evidence is not abstracted, and it is not claimed that section 38 does not, should the evidence warrant, authorize verdicts for assault with intent to kill and assault with intent to maim. The claim is that submission of the forms of verdict relating to assault with intent to kill and assault with intent to maim, created a misapprehension in the minds of the jury. The affidavits of some of the jurors were presented when the motion for a new trial was heard, to the effect that they intended to bring in a verdict finding the defendant guilty of an offense less serious than that specified in the verdict returned. The affidavits, which were couched in carefully used legal terms, were not receivable, because they flatly contradicted the verdict which was returned. Aside from the affidavits, no confusion or misapprehension on the part of the jury is discoverable, and under the very simple and clear but ample instructions of the court there was no cause for confusion or misapprehension. When the affidavits were offered, it was frankly stated that they were offered to show that the verdict returned was not the verdict of the jury. The contention now seems to be that, in the light of the affidavits, the court made some mistake in interpreting the verdict, or in entering judgment on the verdict. The affidavits add nothing to and take nothing from the verdict, and it is to be interpreted precisely as if the affidavits had not been filed.

It is said that the verdict is bad because it does not contain the words “on purpose and of malice aforethought,” and consequently does not show an offense under the statute. It is not necessary that a verdict of guilty under section 38 of the crimes act specify all the elements of the crime detailed in the information. The reference to that section (Gen. Stat. 1909, § 2526) and to the information, considered in connection with the remainder ' of the verdict, makes the -verdict perfectly definite and certain.

It is said the verdict is insufficient in that it does not specify the degree of the crime of which the defendant was found guilty. There are no degrees of the crime made punishable by section 38.

Complaint is made of an instruction, relating to evidence of the defendant’s previous good character. The court regards the instruction as sufficient.

The judgment of the district court is affirmed.