In re Alcorn

Idaho Supreme Court

In re Alcorn

60 P. 561, 7 Idaho 101, 1900 Ida. LEXIS 17

CourtIdaho Supreme Court

DecidedMarch 23, 1900

StatusPublished

Cited by10 cases

This text of 60 P. 561 (In re Alcorn) is published on Counsel Stack Legal Research, covering Idaho Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re Alcorn, 60 P. 561, 7 Idaho 101, 1900 Ida. LEXIS 17 (Idaho 1900).

Pincite

Opinion

Per CURIAM.

The petitioner was indicted in the district' court for Kootenai county, for the crime of murder, alleged to have been committed upon one Cora A Burke “by attempting to produce upon the said Cora A. Burke a criminal abortion, from the effects of which she died on the twenty-third day of June, 1899.” Upon this indictment the petitioner was convicted of the crime of manslaughter. The petition herein is based upon the following grounds: 1. That under the indictment a conviction could not be had for manslaughter, and the verdict of the jury, when received by the court, is an acquittal [103]*103oí the crime of murder, as charged in the indictment; 2. That the indictment does not charge a public offense.”

We do not feel constrained to expend time in the consideration of the first point presented by the petition. The provisions of section 7926 of our Revised Statutes settle this question, and any discussion of it after the repeated and uniform decisions upon it and similar statutes would be an act of supererogation.

As to the second point: The indictment charges “that the said R. J. Alcorn, on or about the twenty-first day of June, -, and before the finding of this indictment, at Kootenai county, state of Idaho, in and upon one Cora A. Burke, felon-iously, and of his malice aforethought, did make an assault,” etc., from the effects whereof the said Cora A. Burke, on the twenty-third day of June, 1899, did die. From the answer it appears that on the trial it was proven, without objection, on the part of the defendant, that said assault was committed on the twenty-first day of June, 1899. It is contended by petitioner, as it does not directly appear from the indictment that death from the assault occurred-within a year and a day from the commission of the assault, that, therefore, no public offense is charged. No demurrer was filed to the indictment. A motion in arrest of judgment was made, and overruled by the trial court, but upon what grounds said motion was made does not appear. Without passing upon the question as to the sufficiency of the indictment in the particular point raised, it is enough to say that the questions raised cannot be made the grounds for a writ of habeas corpus. Under the provisions of our P.enal Code (title 6. chapter 3), these questions should have been raised by demurrer, and are proper matters of appeal. The writ of habeas corpus cannot be made available to serve the purposes of an appeal. Writ denied.

Free access — add to your briefcase to read the full text and ask questions with AI

Per CURIAM.

The petitioner was indicted in the district' court for Kootenai county, for the crime of murder, alleged to have been committed upon one Cora A Burke “by attempting to produce upon the said Cora A. Burke a criminal abortion, from the effects of which she died on the twenty-third day of June, 1899.” Upon this indictment the petitioner was convicted of the crime of manslaughter. The petition herein is based upon the following grounds: 1. That under the indictment a conviction could not be had for manslaughter, and the verdict of the jury, when received by the court, is an acquittal [103]*103oí the crime of murder, as charged in the indictment; 2. That the indictment does not charge a public offense.”

We do not feel constrained to expend time in the consideration of the first point presented by the petition. The provisions of section 7926 of our Revised Statutes settle this question, and any discussion of it after the repeated and uniform decisions upon it and similar statutes would be an act of supererogation.

As to the second point: The indictment charges “that the said R. J. Alcorn, on or about the twenty-first day of June, -, and before the finding of this indictment, at Kootenai county, state of Idaho, in and upon one Cora A. Burke, felon-iously, and of his malice aforethought, did make an assault,” etc., from the effects whereof the said Cora A. Burke, on the twenty-third day of June, 1899, did die. From the answer it appears that on the trial it was proven, without objection, on the part of the defendant, that said assault was committed on the twenty-first day of June, 1899. It is contended by petitioner, as it does not directly appear from the indictment that death from the assault occurred-within a year and a day from the commission of the assault, that, therefore, no public offense is charged. No demurrer was filed to the indictment. A motion in arrest of judgment was made, and overruled by the trial court, but upon what grounds said motion was made does not appear. Without passing upon the question as to the sufficiency of the indictment in the particular point raised, it is enough to say that the questions raised cannot be made the grounds for a writ of habeas corpus. Under the provisions of our P.enal Code (title 6. chapter 3), these questions should have been raised by demurrer, and are proper matters of appeal. The writ of habeas corpus cannot be made available to serve the purposes of an appeal. Writ denied.

Cite This Page — Counsel Stack

Bluebook (online)

60 P. 561, 7 Idaho 101, 1900 Ida. LEXIS 17, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-alcorn-idaho-1900.

Opinion

Related

Cite This Page — Counsel Stack