Page:Dakota Territory Reports.djvu/383

 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 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 imprisomentimprisonment [sic] 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 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, 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 firearms, but to other instrumentalities, viz.: in the one case to deadly weapons or force, in the other to sharp or dangerous weapons.

In each of these divisions, as applicable to a given case, a compound offense is carefully marked out and defined, the initial ingredient being an assault. Certain elements, or particulars, are specified, which, when united, form the comple-