Page:Dakota Territory Reports.djvu/379

 ''3. -:'' . A verdict on an indictment for "an assault upon and for shooting one F. McM. with a pistol, commonly known as a revolver, loaded with gun powder and leaden bullets, with intent to kill," finding "the defendant guilty of assault with intent to do bodily harm, and without justifiable or excusable cause," is a conviction for a misdemeanor, and will not sustain a judgment as for a felony.

4. SENTENCE:. Where the only error complained of is the illegality of the sentence, the Supreme Court has the power to affirm the conviction, modify the judgment, and remit the case to the court below that the proper judgment may there be imposed.

The defendant was indicted and tried In the court below for "an assault upon and for shooting one F. McM. with a pistol, commonly known as a revolver, loaded with gun powder and leaden bullets, with intent to kill." The statute under which this indictment was found, reads as follows: "Every person who shoots or attempts to shoot at another, with any kind of firearms, 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." (Penal Code, § 279.) The statute relating to assaults with intent to do bodily harm, is as follows: "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 firearms, 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." (Penal Code, § 309.)

"A felony is a crime which is, or may be punishable with death or by imprisonment in the Territorial prison. Every other crime is a misdemeanor." (Penal Code, §§ 5 and 6.)