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State v. District Court of Second Judicial Superior Court of Spokane County, State
Dist. (Mont.)

570
v. (Wash.).

.1052 State v. District Court of Second Judicial Sutphin, Wells v. (Kan.).

648 Dist. Mont.) 794 Sutro, Farnsworth v. (Cal.)..

703 State v. District Court of Second Judicial Swofford Bros. Dry Goods Co., McLain Dist. Mont.) 797 Land & Investment Co. v. (Okl.).

502 State v. District Court of Second Judicial Swortfiguer, Quackenbush v. (Cal.). 590 Dist. (Mont.)

861 State y. District Court of Second Judicial Tacoma Cemetery, City of Tacoma V. Dist. (Mont.) 946 (Wash.)

723 State v. District Court of Second Judicial Taffe v. Oregon R. & Nav. Co. (Or.). 732 Dist. (Mont.)

.1134 Talcott, Delta County Land & Cattle Co. State v. Francis (Kan.). 66 v. (Colo. App.).

985) State v. Freegard, two cases (Kan.). .1133 Tarr v. Abrams (Kan.).

605 State v. Gayhart Nev.).. 113 : Tate v. Crooks (Kan.).

74 State v. Hamlin (Kan.).

.1133 | Tate, McLain Land & Investment Co. v. State v. Haworth (Utah). 13.) (Okl.)

..1134 State v. Henry (Wasb.).

368 Tavlor v. Atchison, T. & S. F. R. Co. State v. Hickox (Kan.). 35 (Kan.)

691 State v. Hornbeck (Kan.).

636 Taylor v. Colorado Iron Works (Colo. Sup.) 219 State v. Kelly (Or.)... 1 Taylor, Schroyer v. (Kan.).

.1131 State v. King (Utah).

418 T. C. Power & Bro. v. Murphy (Mont.). 411 State v. Lockhart, Police Justice of City Terrel, Gaumer v. (Kan.);

. 1071 of Port Townsend (Wash.). 894 Terrell, Territory v. (Okl.).

503 State v. Morrison (Kan.).. 48 Territory v. Cordova (N. M.).

919 State v. Neal (Wash.). .1135 Territory v. Gonzales (N. M.).

923 State v. Nevada Cent. R. Co. (Nev.). 2.94 Territory v. Gonzales (N. M.).

925 State v. Putney (Kan.). .1133 Territory v. Terrell (Okl.)..

503 State v. Russell (Kan.). 615 Territory, Gibson v. (Ariz.).

540 State v. Seattle Gas & Electric Co. (Wash.) 946 Territory, Lee v. (Okl.).

..1134 State v. Simmons (Kan.). 636 Territory, Ortega v. (Ariz.).

544 State v. Spangler (Kan.). 39 Territory, Pearce v. (Okl.).

504 State v. Superior Court of King County Territory, Qualey v. (Ariz.).

546 (Wash.) 170 Territory, Rutter v. (Okl.).

507 State v. Superior Court of King County Thacker Wood & Mfg. Co. v. Mallory (Wash.) 957 (Wash.)

1.99 State v. Superior Court of King County Thiessen v. Worthington (Or.).

424 (Wash.) .1051 Thomas, Dunlop v. (Wash.).

909 State v. Superior Court of Spokane County Thomas, Stewart v. (Kan.).

70 (Wash.) 865 Thompson, Wilson v. (Kan.).

1133 State v. Superior Court of Spokane Coun- Thornton, Holt Mfg. Co. v. (Cal.).

708 ty (Wash.) 1052 Thorp, Ash v. (Kan.).

..1067 State v. Thurman (Kan.).

...1081 Thorpe v. Union Pac. Coal Co. (Utah). 145 State v. Walker (Kan.). .1095 Thurman, State v. (Kan.).

..1081 State v. Welch (Or.). . 808 Tinkel v. Griffin (Mont.).

859 State v. Wilcox (Kan.).

6:34 Title Guarantee & Trust Co. v. McDonnell State v. Wolf (Kan.). .1133 (Wash.)

890 State, Gustavenson v. (Wyo.).

.1006 Tohin v. Portland Flouring Mills Co. (Or.) 743 State, Smith v. (Kan.).

611 Tobin v. Portland Flouring Mills Co. (Or.) 749 State Board of Equalization* v. People Tobin v. Portland Flouring Mills Co. (Colo. Sup.). 235 (Or.)

..1108 States v. Durkin (Kan.). .1091 Tomlinson, Johnson v. (Or.).

406 Staude, Adler v. (Cal.). 599 Tootle, Clemmans v. (Kan.).

1126 Steidle, Stanford Land Co. v. (Wash.)... 178 Torreyson v. Bowman (Nev.)

472 Stern, Humboldt County v. (Cal.). 324 Towle v. Weise (Kan.).

637 Stevens v. Walton (Colo. App.). 834 Town of Stayton, Trotter v. (Or.).

3 Stewart v. Thomas (Kan.)..

70 Traders' Nat. Bank, Reeder v. (Wash.).. 461 Stewart, Farmers' Alliance Mut. Fire Ins. Treasurer of Arapahoe County, Bishop, Co. v. (Colo. App.)....

1057 etc., of the Cathedral of St. John the Stewart, Legere v. (Colo. App.). . 10:59 Evangelist v. (Colo. Sup.).

272 Stillinger v. Pablo (Mont.).

..1134 Tribe, Fanny Rawlings Min. Co. v. (Colo. Stilwell, De Mund Lumber Co. v. (Ariz.). . 543 Sup.)

284 Stimson Mill Co. v. Braun (Cal.). 481 Trotter v. Town of Stayton (Or.).

3 Stocking, Power v. (Mont.).. 8.57 Troy Laundry Co., Stager v. (Or.).

405 Stocks v. Schroyer (Kan.).

.1130 Tucker v. Northern Pac. Terminal Co. (Or.) 426 Stone, Rattlemiller v. (Wash.). 168 Tucker v. Smith (Kan.)....

40 Stratton, Crosby v. (Colo. App.).

130 Strickland v. Heath (Or.).

1135 Union Pac. Coal Co., Thorpe v. (Utah).. 145 Strong. Williamson v. (Cal.).

486 United States, Downing v. (Ariz.)... Stull, Nelson v. (Kan.).

617 Sullivan v. Callvert (Wash.).

363 Valley, Building & Loan Ass'n, Roseberry Sullivan v. City of Wichita (Kan.). 55 v. (Colo. App.)..

1063 Superior Court in and for City and Coun- Vance, Chicago, R. I. & P. R. Co. v. (Kan.) 606 ty of San Francisco, Smith v. (Cal.).. 100 Van Horn v. Decrow (Cal.).

173 Superior Court of City and County of San Ventura Land & Power Co. v. Meiners (Cal.) 818 Francisco, Crooks v. (Cal.).

96 Vickers Buck Stove & Range Co. Superior Court of City and County of San (Kan.)

..1081 Francisco, R. H. Herron Co. v. (Cal.).. 814 Vincent, Antlers Park Regent Min. Co. Superior Court of King County, State v. v. (Colo. Sup.)..

226 (Wash.) 170 Vosburg v. Vosburg (Cal.)..

691 Superior Court of King County, State v. (Wash.) 937 Wakefield's Estate, In re (Cal.)..

499 Superior Court of King County, State v. Wakefield's Estate. In re (Cal.).

,1126 (Wash) 1051 Walker, State v. (Kan.).

109.) Superior Court of Spokane County, State v. Wallace v. Dodd (Cal.).

693 (Wash.) ...

865

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Walters v. Denver Consol. Electric Light
Co., two cases (Colo. App.)..
Walton, Stevens v. (Colo. App.).
Ward v. Dunne (Cal.).
Warner, Farmer v. (Kan.).
Warren v. Humble (Mont.).
Wartman v. Pecka (Ariz.).
Washington Liquor Co. v. Alladio Café
Co. (Wash.)

Page

Page

Western Union Tel. Co. v. Bimetallic
Bank (Colo. App.)...

115

117
834

313

West & Slade Mill Co., Wilson v. (Wash.) 716 105 Wheeler v. Benjamin (Cal.). .1127 Wheeler, Goodale v. (Or.). 851 Wheelock, People v. (Cal.). 534 White v. Ladd (Or.)...

444

360

.1063

74

Wilcox, De Baca v. (N. M.) Wilcox, State v. (Kan.).. Willard v. Bullen (Or.). Willard v. Carrigan (Ariz.). Williams v. Bishop (Colo. App.). Williams v. Commercial Nat. Bank (Or.).. 806 Williams v. Davidson (Kan.).. Williamson v. Strong (Cal.).. 1044 Wilson v. Thompson (Kan.). .1133 Wilson v. West & Slade Mill Co. (Wash.) 716 .1107 Winston v. Crowe (Wash.).. .1096 Wolf V. Hemrich Bros. 1044 (Wash.)

781

650 486 .1133

174

Brewing Co.

Washington Water Power Co., Gray v. (Wash.)

Washougal & L. Transp. Co. v. The Dal-
les, P. & A. Nav. Co. (Wash.).
Water Supply & Storage Co., New Cache la
Poudre Irr. Co. v. (Colo. Sup.)..
Watson v. Webb (Wash.)..
Webb v. Branner (Kan.)..
Webb, Branner v. (Kan.)..
Webb, Hazen v. (Kan.).
Webb, Watson v. (Wash.).
Weed, In re (Mont.)....

.1115 Wolf, State v. (Kan.)..:

Weinhard v. Commercial Nat. Bank (Or.) 806 Wollenberg v. Rose (Or.).
Weise, Towle v. (Kan.)..
Weishaar, Haenky v. (Kan.).
Welch, Evans v. (Colo. Sup.).
Welch, State v. (Or.)...

Wells v. Sutphin (Kan.).
Western Loan & Savings Co. v. Desky

808
648

141

637 Woodard, Bemmerly v., two cases (Cal.)..1017
610 Worthington, Thiessen v. (Or.).
776 Wright v. Ramp (Or.)...

Wylie, Crystal Ice Co. v. (Kan.).

Wyoming College and Normal School v.
Farm Inv. Co. (Wyo.)..

753

579

739

922

634

422

538

440 .1133 804

424 731 .1086

561

(Utah)

Western Sash & Door Co. v. Heiman (Kan.)

.1080

REHEARINGS DENIED.

Alexander v. Barker (Kan.) 67 P. 829. Anderson v. Montgomery Co. Nat. Bank (Kan.) 67 P. 1110.

Armstrong v. Coyne (Kan. Sup.) 67 P. 537. Atchison, T. & S. F. Ry. Co. v. Morris (Kan.) | 67 P. 837.

Atchison, T. & S. F. Ry. Co. v. Potter (Kan.) 67 P. 534.

Bolz v. Crone (Kan.) 67 P. 1108.

Campbell v. Board of Com'rs of Sumner Coun-
ty (Kan.) 6 P. 866.

Grant v. Robb (Kan.) 67 P. 852.
Green v. McCrocken (Kan.) 67 P. 857.

Carroll v. Caine (Wash.) 67 P: 993.
Cedar Canyon Consolidated Min. Co. v. Yar-
wood (Wash.) 67 P. 749.

Chicago Lumber & Coal Co. v. Sugar Loaf Tp.
(Kan. Sup.) 67 P. 630.

City of Eureka v. Ross (Kan.) 67 P. 849.

Young v. Porter (Wash.).
Young, Aldrich v. (N. M.).

[Cases in which rehearings have been denied, without the rendition of a written opinion, since the publication of the original opinions in previous volumes of this reporter.]

362 .....1134

Kelley v. McHugh (Kan. Sup.) 67 P. 1130.
Knapp v. American Hand Sewed Shoe Co.
(Kan. Sup.) 66 P. 996.

Douglass v. Frazier (Kan.) 67 P. 1102.
Douglass v. Lowell (Kan.) 67 P. 1106.

Ellinger v. Thomas (Kan. Sup.) 67 P. 529.

German Ins. Co. v. Kirkendall (Kan. Sup.) 67 State v. Burton (Wash.) 67 P. 1097.
P. 443.
State v. Carlson (Or.) 67 P. 516.

Liverpool & L. & G. Ins. Co. v. Heckman
(Kan.) 67 P. 879.

McAllister v. Houston (Kan. Sup.) 67 P. 544.
McMullen v. Winfield B. & L. Ass'n (Kan.)
67 P. 892.
Metropolitan Life Ins. Co. v.
67 P. 835.

O'Farrell (Kan.)

Moore v. Shofner (Or.) 67 P. 511.
Moses v. Hoffmaster (Kan. Sup.) 67 P. 459.

Powers v. Scharling (Kan.) 67 P. 820.

Remington v. Fidelity & Deposit Co. (Wash.) 67 P. 989.

Shattuck v. Board of Com'rs of Harvey County (Kan. Sup.) 66 P. 1057.

Skinner v. Lewis (Or.) 67 P. 951.

Hanna v. Kasson (Wash.) 67 P. 271.
Hinshaw v. Austin (Kan.) 67 P. 882.
Hirsch v. Salem Flouring Mills Co. (Or.) 67 P. Taffe v. Oregon R. Co. (Or.) 67 P. 1015.

949.

Walsh v. Wallace (Nev.) 67 P. 914. Johnson v. Portland Stone Co. (Or.) 67 P. 1013. Willard v. Bullen (Or.) 67 P. 924.

Standard Oil Co. v. Cook (Kan. Sup.) 66 P.
1000.

State ex rel. Howard v. Cole (Wash.) 67 P.
1135.
State ex rel. Sheppard v. Harbison (Kan.) 67
P. 844.

REHEARINGS GRANTED.

(California cases in which rehearings have been granted and in which rehearings have been disposed of, with or without written opinions, since the publication of the original opinions in pre vious volumes of this reporter.)

Beveridge v. Lewis, 67 P. 1040; granted | Levin, In re, 63 P. 335; granted Jan. 1, 1901. March 28, 1902.

Loewenthal v. Coonan, 67 P. 324, 1033. On

rehearing, 68 P. 303. City St. Imp. Co. v. Babcock, 68 P. 584; granted April 14, 1902.

Miller v. Grunsky, 66 P. 858; granted Dec. City St. Imp. Co. v. Reddington, 68 P. 1125; 28, 1901. granted April 14, 1902.

Neilson v. Provident Sav. Life Assur. Soc., 66 Davidson v. Lawson, 68 P. 101; granted April P. 663; granted Dec. 6, 1901.

4, 1902. De' Prosse v. Royal Eagle Distilleries Co., 67 People v. Lapique, 67 P. 14; granted Jan. 11, P. 502; granted Feb. 24, 1902.

1902. Dobbs V. Purington, 65 P. 1091. On rehear- Pullen v. Placer County Bank, 66 P. 740; ing, 68 P. 323.

granted Dec. 18, 1901. Elizalde v. Graves, 66 P. 369; granted Nov. Rue v. Quinn, 66 P. 216; granted Oct. 12, 21, 1901.

1901. German Sav. & Loan Soc. v. Ramish, April 23, Salcido v. Roberts, 67 P. 1077; granted March 1902; granted May 3, 1902.

27, 1902. Green V. Southern Cal. Ry. Co., 67 P. 4; Southern Cal. R. Co. v. Slauson, 68 P. 107; granted Jan. 17, 1902.

granted April 7, 1902. Healey's Estate, In re, 66 P. 175; granted Warren v. Southern Cal. Ry, Co., 67 P. 1; Oct. 11, 1901.

granted Jan. 17, 1902.

Winchester v. Howard, 64 P. 692; granted Kleckner v. Mathiason, granted Nov. 21, 1901. May 6, 1901. 68 P.

(xvl)

THE

PACIFIC REPORTER.

VOLUME 68.

! 11 Or. 20)

torney. The defendant was charged with STATE V. KELLY.

the crime of assault with intent to kill, and

convicted of an assault with a dangerous (Supreme Court of Oregon. March 24, 1902.)

weapon. The charging part of the inforınaCRIMINAL LAW-ASSAULT WITH INTENT TO KILL – INFORMATION – SUFFICIENCY – AL

tion is as follows: "The said John Kelly on LEGATIONS OF WILLFULNESS AND MALICE- the 15th day of June, 1901, in the county of VERDICT-RESTRICTION AS TO GRADE OF OFFENSE.

Marion and the state of Oregon, then and 1. Where an information for assault with in- there being armed with a dangerous weapon, tent to kill charged that accused on a certain to wit, a pistol loaded with powder and ball, date, in the county of M., "then and there be

did then and there unlawfully and feloniousing armed with a dangerous weapon, did then

ly assault one Frank Lambert with said danand there feloviously assault one L. with such daugerous weapon, the information was not gerous weapon, with intent him, the said objectionable on the ground that the phrase | Frank Lambert, to kill with said dangerous "then and there being armed," etc., referred to the date of the information, and not the

weapon, by then and there unlawfully and time when the act was alleged to have been feloniously shooting and wounding the said committed.

Frank Lambert, contrary to the statutes,” etc. 2. Under Hill's Ann, Laws, $ 1268, subd. 2,

After the verdict the defendant moved for a requiring inforinations and indictments to state the acts constituting the offense in ordinary

judgment of acquittal, and it is now contendand concise language, without repetition, in ed (1) that the information is insufficient to such manner as to enable a person of common charge the crime of an assault with intent to understanding to know what is intended, an in

kill; and (2) that the shooting having been formation giving the date and place of the alleged offense, and stating that accused "did

admitted by the defendant, and he having then and there unlawfully and feloniously as- sought to justify the act on the ground of sault one L. with a dangerous weapon, with in

self-defense, but one of two verdicts could tent to kill," was not objectionable as not sufficiently stating the acts constituting the al

have been found, namely, guilty as charged leged assault, and alleging a conclusion of law. or not guilty. Touching the insufficiency of

3. The court is coinmitted by the rule of the information it is urged (1) that the venue stare decisis to the doctrine that it is unneces

is not sufficiently laid, for that the words sary for an information for assault with intent to kill to allege that the act was purposely and

"then and there being armed," etc., refer to maliciously done, or with premeditation or the date of the information, and not to the malice aforethought.

time the act is alleged to have been commit4. Where a party was convicted of an assault with a dangerous weapon, a charge that

ted; (2) that the acts constituting the alleg. he might be convicted of a simple assault was ed assault are not sufficiently stated, being. nonprejudicial, if erroneous.

as stated, a mere conclusion of law, and be5. Where defendant in a prosecution upon an

cause the words "shooti inforination charging assault with a dangerous

and wounding the weapon with intent to kill admitted the as

said Frank Lambert” qualify and attend the sault, and sought to justify his act on the words "to kill," rather than the allegation of ground of self-defense, the jury were not re- assault; and (3) that it is not alleged that the stricted to a verdict of guilty as charged or not guilty, but were properly allowed to find de

assault was purposely and maliciously done. feudant guilty of an assault with a dangerous

Of these in their order: It is usual, and perweapon, without intent to kill.

haps requisite, that the time and place should Appeal from circuit court, Marion county; qualify or be added to every alleged fact in George H. Burnett, Judge.

an information or indictment for felony. John Kelly was convicted of an assault

Nicholson v. State (Ala.) 54 Am. Dec. 168; with a dangerous weapon, and appeals. Af

State v. Thurstin (Me.) 58 Am. Dec. 695. The firmed.

information herein comes up to the full meas

ure of the law. “Then and there being armJ. E. Jeffery and M. E. Pogue, for appel- ed with a dangerous weapon” refers indislant. John A. McNary, for the State.

putably to "the 15th day of June, 1901."

This is evidently the date upon which it is WOLVERTON, J. This is a criminal pros- alleged the crime was committed, as it is ecution on an information of the district at- subsequently averred that he "did then and

68 P.-1

there unlawfully and feloniously assault," ed the jury that they could find one of four referring back to the same language, fixing verdicts: Assault as charged in the indictthe day as its antecedent; so that the specific ment, assault with a dangerous weapon, an objection is not well taken. The second crit- assault only, or not guilty. It is maintained icism is also without efficacy. The manner that the court erred in this instruction, and of the assault is alleged as being "with said that the verdict should be either guilty as dangerous weapon, with intent kill,” etc., | ch rged or not guilty, and that, having found "by then and there unlawfully shooting and the defendant guilty of an assault with a wounding said Frank Lamliert.” The statute dangerous weapon,-a lesser offense of the requires a statement of the acts constituting same grade,-it was tantamount to an acquitthe offense in ordinary and concise language, tal of the higher offense, and therefore that. without repetition, and in such a manner as he should be discharged. We will not atto enable a person of common understanding tempt to determine whether there was error to know what is intended. Hill's Ann. Laws, in charging that the jury might find for an subd. 2, § 1268. Measured by this standard, assault only, for, if there was, it was favorathe indictment is not open to this criticism. ble to the defendant, he being convicted of People v. Ah Woo, 28 Cal. 205. The next ob- a graver crime, and a reversal of the judgjection is fully met by former decisions of this ment could not be predicated thereon. The court. State v. Doty, 5 Or. 491; State v. elements entering into the two crimes of asLynch, 20 Or. 389, 26 Pac. 219. By these the sault with intent to kill, and an assault, being court is committed to the doctrine that it is armed with a dangerous weapon, are aptly unnecessary, in an indictment for a like of- analyzed in State v. McLennen, supra. In fense to that charged herein, to allege that the first there must be an assault coupled the act was purposely and maliciously done, with an intent to kill; and in the latter the or with premeditation or malice aforethought. defendant must be armed with a dangerous In the latter case the majority of the court weapon, and the assault made therewith. felt bound solely upon the ground of stare de- Now, an assault is an intentional attempt to cisis, referring to the former; at the same do injury to another. 2 Whart. Cr. Law (7th time suggesting that it was not supported by Ed.) § 1241. So that an assault with a danthe better authority. We are bound upon gerous weapon is an intentional attempt to the same principle, if by none other, and do do injury to another with such weapon, and not feel warranted in disturbing the prece- the elenient of intent attends the offense. We dent.

have therefore in the one case an intent to This brings us to the second contention. It kill, and in the other an intent to do injury has been determined that a person charged with the weapon used, and it was pertinent under section 1740, Hill's Ann. Laws, with an for the jury to determine with what intent assault with an intent to kill, may be convict- the assault was made, it being admitted that ed under section 1744 of an assault, being it was made with a dangerous weapon; and armed with a dangerous weapon. State v. it therefore follows that the court properly McLennen, 16 Or. 59, 16 Pac. 879. In the instructed them that they might find the decase at bar, however, the defendant admitted fendant guilty of an assault with a dangerous the assault, and sought to justify his act weapon. The cases cited and relied upon by upon the ground of self-defense. He testified defendant do not seem to support his position in his own behalf that, while he and Lambert as applied to a case like this. The most perwere sitting on the steps of a store, Lambert tinent are State v. Doyle, 107 Mo. 36, 17 S. commenced quarreling with him, and there- | W. 751; State v. Maguire, 113 Mo. 670, 21 upon assaulted him viciously, by catching him S. W. 212; and Phillips v. State (Tex. Cr. by the shoulder with one hand and striking App.) 36 S. W. 86. As illustrating the prinhim in the face with the other, knocking him ciple upon which these cases turn, it was said off the steps; that he immediately arose and in the first cited: "If the unquestioned evistarted to his buggy, and, in order to avoid dence showed that the offense charged, and passing in front of or near Lambert, passed no other, was committed, then a conviction out into the street, and around a tree stand- could only properly be had for the one charing at the edge of the sidewalk, at the same ged. The admissions of defendant show that time asking Lambert why he struck him; he was guilty of a felonious assault, unless that Lambert answered, “I'll kick the lungs justified. Under the testimony given by deout of you,” coupling it with an epithet, fendant himself, the court properly refused to whereupon he drew his pistol and pointed it instruct on an offense less than charged." at Lambert, saying, "If you hit me again, I Not so in the case at bar, as the evidence is will shoot you;" that Lambert said, “Shoot," susceptible of two interpretations,-an asaccompanying it with violent language, at the sault with intent to kill, or an assault with a same time rushing at him with his left hand dangerous weapon, being armed therewith, extended, and his right hand in his hip pock- | with intent to injure the defendant. The inet. Another witness testified that the shot tent was not necessarily to kill because a piswas fired when Lambert was advancing rap- | tol was used, and the jury found otherwise. idly towards the defendant, the ball taking The judgment should therefore be affirmed, effect in Lambert's face. The court instruct- and it is so ordered.

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