Page:Dakota Territory Reports.djvu/381

, 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 gun powder 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 the first, 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 473 and 479 of the Code of Criminal Procedure. The certificate was filed and the execution of the judgment was stayed, and the defendant is detained to abide the judgment of the Supreme Court, according to section 480 of the same Code.

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 (Revised Codes; page 769), prescribes that "every person who shoots or attempts to shoot at another with any kind of firearms, air gun, or other means whatever, with intent to kill any person, or