Page:Dakota Territory Reports.djvu/380

 Upon the trial the jury rendered the following verdict, to-wit: "We, the jury, find the defendant guilty of an 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 steps were taken to bring the evidence, or any part of it, within the record. The Court sentenced the defendant to five years' imprisonment in the Territorial prison, to which judgment the defendant excepted and removed the cause to this court by writ of error, presenting the sole question as to the legality of the judgment.

S. L. Spinky, for defendant.

Under the statutes of Dakota there is no such crime as assault with intent to do bodily harm, unless the assault is committed with some sharp or dangerous weapon, or some shooting instrument. (Sec. 309, Penal Code.) The weapon used is a necessary ingredient of the crime, and the failure of the jury to find that the assault was committed by one of the weapons named in the above section reduced the verdict to a verdict for simple assault, for which the punishment is fine or imprisonment in the county jail, or both. (O'Leary v. The People, 17 Howard's Practice Rep., 316; 4 Parker's Cr. Rep., 187; 5 Parker's Cr. Rep., 214; 24 Howard's P. R., 400; 47 Barber, 504; 4 Parker's Cr. Rep., 61; 6 California, 562; 9 California, 260; 40 California, 427; 44 California, 580; 45 California, 281; 47 California, 112; 50 Miss., 492.) Statute of N. Y.: assault with intent to commit bodily injury; see Wharton's American Cr. Law, 2d Vol., § 1274.

P. K. Faulk, District Attorney, for the Territory.

Sections 280 and 309, Penal Code.

Indictment.—The greater offense, that is the assault with intent to kill, includes the lesser, the assault with intent to do bodily injury — assault, main charge. (Opinion of Supreme Court of Dakota in Odell case; Secs. 291, 292, Penal Code.)

As to form of verdict, vide sections 394, 395, and 400, 401, 402, of Code of Criminal Procedure. (26 Illinois, 500; 30 California, 215; 26 Texas, 114; Green. Crim. Reports, 194.)