After the arguments the prisoner’s counsel requested the court:
1. To direct the jury that, it appearing from the evidence that this assault was committed with a horseshoe which is produced, an ordinary horseshoe produced here, they would not be authorized to find the defendant guilty under the indictment of the offense charged in the indictment. Denied.
2. To hold that under the statute with regard to assault with intent to do bodily harm, that the sharp and dangerous weapon mentioned in the statute must be one of a similar character to a knife, dirk or dagger.
The Court — I will hold that proposition.
3. To instruct the jury that this horseshoe is not an instrument similar to a knife, dirk, dagger, or other sharp, dangerous weapon.
The Court—That I will submit to the jury under such instructions as I think propen
4. To hold that as there is no count in the indictment for assault and battery upon the evidence, there can be no conviction here for assault and battery.
The Court — I hold that under this indictment the jury may convict of the lesser offense, an assault, if they find the higher offense charged is not maintained.
5. To hold that as a battery has been shown, the offense of assault is merged and extinguished in the battery, and therefore there can be no conviction under this indictment.
The Court — I decline to hold that as matter of law.
Defendant’s Counsel — Does the court hold that under this indictment the prisoner may be convicted of a simple assault ?
The Court — I hold they may convict of it if the evidence warrants of it, an assault. I do not go so far as assault and battery, but simply an assault.
[192]*192Osbobst, J., charged the jury as follows:
Gentlemen, of the jury.— In 1881, in June, on the eighteenth day, Mr. Durand, who was living in this city, and by occupation a tailor, as he claims, was in his place of business and attending to his business, and in that business was assisted by this lady who has béen put upon the stand, Miss Finn. He says on that occasion the defendant came into the room by a back door without any notice, came in in a violent way, approached the place where he was at work and struck him a blow which partly felled him, and then that in undertaking to defend himself, he seized this board which has been spoken of, when the defendant grabbed this horseshoe which has been produced in evidence and struck him several violent blows upon the head and about different parts of his person.
It would seem, if we are to believe the testimony, and there is no dispute about it, that Mr. Durand was considerably injured upon that occasion at the hands of the defendant. He remained in the hospital for three or four weeks, and his physician is here who testifies that there were a large number of cuts upon his person that he discovered in attending him, so, perhaps, you will have no trouble in arriving at the conclusion that there was considerable degree of violence employed by the defendant on that occasion, and that Mr. Durand was, to a considerable extent, injured in consequence of what took place there.
If this were a simple indictment for assault and battery, you would, perhaps, have little trouble in arriving at a conclusion, but the grand jury have seen fit, in the discharge of their duty, to indict for a graver offense than assault and battery. They have indicted this man for an assault with a sharp, dangerous weapon, intending to do bodily harm, and the 'first question which arises here is whether this is such an instrument as is fairly embraced within the meaning of this section of the statute. (The court read the statute.) It must he a knife, it must be a dagger, or it must be another sharp [193]*193and dangerous weapon, and that instrument, I am bound to charge you, as I have been requested to do, if not a knife or dagger, must be something of the nature of these instruments. We all know what a knife is, that it is a sharp, dangerous instrument. We all understand what a dagger is, and there are other instruments of a sharp, dangerous character, and an offense committed by those would be an offense by this statute as well as if committed by a knife or dagger; but it must be of the same character, that is, they must be sharp and dangerous, that is, naturally producing the same or similar results as those produced by the instruments mentioned in this statute.
It is difficult to hold, as matter of law, what is or what is not a sharp, dangerous instrument in the meaning of this statute. If it was a knife there would be no difficulty in saying it was fairly embraced in the meaning of the statute. If it was a dagger there would be no difficulty in determining that question, and if it was a sharp instrument, though not a knife or dagger, an instrument like a hatchet or ax, there would be no trouble. But I have concluded to leave it as a question of fact for you, judging from this testimony, from the manner in which the injury was inflicted, and the description of the physician and other witnesses, whether this is or not such a sharp and dangerous instrument as is embraced in the terms of this statute. If so, and you believe the injuries were inflicted, as the complainant claims and this lady swears, without excusable or justifiable cause, and unless the dp.fp.-nda.-nf. is shielded from responsibility for another reason, to which I will presently call your attention, then the offense as charged in the indictment is made out.
But if you conclude it would be straining the evidence to hold that, although the horseshoe has inflicted injuries similar co those which could be inflicted by a knife or dagger, yet if it is straining a point to say this is an instrument fairly within this statute, I am inclined to charge you that if you shall conclude that this greater offense as charged in the indictment is not proved, that you cannot and will not convict for any [194]*194other or greater offense undei' this indietment than an assault simply.
The proposition is a doubtful one and I prefer not to have it in the case. If an offense has been committed, and is simply an assault within the meaning of the law, it is an offense for which he can be punished, and the law vindicated and justice maintained.
You are to determine this in the light of this testimony, not with any feeling against this party, but with the simple desire to arrive at the truth.
It is impossible for the court to charge that this is or is not a sharp or dangerous instrument in the meaning of this section, but it is left to you. But it is urged upon the part of the defense that this man should be acquitted entirely; that on that occasion he was not in such a state of mind as to be responsible for his act. They do not claim he is insane, but it is urged that upon that occasion he was in such a state in consequence of injuries he had- received earlier in life, and having partaken of liquor; that he did not know what he was about; that he was wild, insane and in no manner responsible for the acts he committed.
It is for you to say whether you are prepared under this evidence to say that a man shall escape from an act so serious in its consequences as this. If you believe the injuries were sustained by complainant, it will be for you to say whether you will establish a precedent that a party may go free under such a plea and the evidence given.
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After the arguments the prisoner’s counsel requested the court:
1. To direct the jury that, it appearing from the evidence that this assault was committed with a horseshoe which is produced, an ordinary horseshoe produced here, they would not be authorized to find the defendant guilty under the indictment of the offense charged in the indictment. Denied.
2. To hold that under the statute with regard to assault with intent to do bodily harm, that the sharp and dangerous weapon mentioned in the statute must be one of a similar character to a knife, dirk or dagger.
The Court — I will hold that proposition.
3. To instruct the jury that this horseshoe is not an instrument similar to a knife, dirk, dagger, or other sharp, dangerous weapon.
The Court—That I will submit to the jury under such instructions as I think propen
4. To hold that as there is no count in the indictment for assault and battery upon the evidence, there can be no conviction here for assault and battery.
The Court — I hold that under this indictment the jury may convict of the lesser offense, an assault, if they find the higher offense charged is not maintained.
5. To hold that as a battery has been shown, the offense of assault is merged and extinguished in the battery, and therefore there can be no conviction under this indictment.
The Court — I decline to hold that as matter of law.
Defendant’s Counsel — Does the court hold that under this indictment the prisoner may be convicted of a simple assault ?
The Court — I hold they may convict of it if the evidence warrants of it, an assault. I do not go so far as assault and battery, but simply an assault.
[192]*192Osbobst, J., charged the jury as follows:
Gentlemen, of the jury.— In 1881, in June, on the eighteenth day, Mr. Durand, who was living in this city, and by occupation a tailor, as he claims, was in his place of business and attending to his business, and in that business was assisted by this lady who has béen put upon the stand, Miss Finn. He says on that occasion the defendant came into the room by a back door without any notice, came in in a violent way, approached the place where he was at work and struck him a blow which partly felled him, and then that in undertaking to defend himself, he seized this board which has been spoken of, when the defendant grabbed this horseshoe which has been produced in evidence and struck him several violent blows upon the head and about different parts of his person.
It would seem, if we are to believe the testimony, and there is no dispute about it, that Mr. Durand was considerably injured upon that occasion at the hands of the defendant. He remained in the hospital for three or four weeks, and his physician is here who testifies that there were a large number of cuts upon his person that he discovered in attending him, so, perhaps, you will have no trouble in arriving at the conclusion that there was considerable degree of violence employed by the defendant on that occasion, and that Mr. Durand was, to a considerable extent, injured in consequence of what took place there.
If this were a simple indictment for assault and battery, you would, perhaps, have little trouble in arriving at a conclusion, but the grand jury have seen fit, in the discharge of their duty, to indict for a graver offense than assault and battery. They have indicted this man for an assault with a sharp, dangerous weapon, intending to do bodily harm, and the 'first question which arises here is whether this is such an instrument as is fairly embraced within the meaning of this section of the statute. (The court read the statute.) It must he a knife, it must be a dagger, or it must be another sharp [193]*193and dangerous weapon, and that instrument, I am bound to charge you, as I have been requested to do, if not a knife or dagger, must be something of the nature of these instruments. We all know what a knife is, that it is a sharp, dangerous instrument. We all understand what a dagger is, and there are other instruments of a sharp, dangerous character, and an offense committed by those would be an offense by this statute as well as if committed by a knife or dagger; but it must be of the same character, that is, they must be sharp and dangerous, that is, naturally producing the same or similar results as those produced by the instruments mentioned in this statute.
It is difficult to hold, as matter of law, what is or what is not a sharp, dangerous instrument in the meaning of this statute. If it was a knife there would be no difficulty in saying it was fairly embraced in the meaning of the statute. If it was a dagger there would be no difficulty in determining that question, and if it was a sharp instrument, though not a knife or dagger, an instrument like a hatchet or ax, there would be no trouble. But I have concluded to leave it as a question of fact for you, judging from this testimony, from the manner in which the injury was inflicted, and the description of the physician and other witnesses, whether this is or not such a sharp and dangerous instrument as is embraced in the terms of this statute. If so, and you believe the injuries were inflicted, as the complainant claims and this lady swears, without excusable or justifiable cause, and unless the dp.fp.-nda.-nf. is shielded from responsibility for another reason, to which I will presently call your attention, then the offense as charged in the indictment is made out.
But if you conclude it would be straining the evidence to hold that, although the horseshoe has inflicted injuries similar co those which could be inflicted by a knife or dagger, yet if it is straining a point to say this is an instrument fairly within this statute, I am inclined to charge you that if you shall conclude that this greater offense as charged in the indictment is not proved, that you cannot and will not convict for any [194]*194other or greater offense undei' this indietment than an assault simply.
The proposition is a doubtful one and I prefer not to have it in the case. If an offense has been committed, and is simply an assault within the meaning of the law, it is an offense for which he can be punished, and the law vindicated and justice maintained.
You are to determine this in the light of this testimony, not with any feeling against this party, but with the simple desire to arrive at the truth.
It is impossible for the court to charge that this is or is not a sharp or dangerous instrument in the meaning of this section, but it is left to you. But it is urged upon the part of the defense that this man should be acquitted entirely; that on that occasion he was not in such a state of mind as to be responsible for his act. They do not claim he is insane, but it is urged that upon that occasion he was in such a state in consequence of injuries he had- received earlier in life, and having partaken of liquor; that he did not know what he was about; that he was wild, insane and in no manner responsible for the acts he committed.
It is for you to say whether you are prepared under this evidence to say that a man shall escape from an act so serious in its consequences as this. If you believe the injuries were sustained by complainant, it will be for you to say whether you will establish a precedent that a party may go free under such a plea and the evidence given. If you believe the offense charged in the indictment has been proved, that this was a sharp and dangerous instrument, and this man is not to be shielded from responsibility because of his condition as claimed, then you find him guilty as charged in the indictment."
If you believe this was not a sharp and dangerous instrument, and he was guilty of an assault, then find him guilty of an assault.
Prisoner’s counsel asked the court to charge that if the jury have a reasonable doubt as to the character of the instrument, [195]*195as to its being similar to a knife or dagger or dirk, they are bound to hold he is not liable under the statute.
The Court —Tes.
Also, that the instrument must be sharp as well as dangerous.
The Court — Tes.
Also, and similar to a dirk or dagger or knife.
The Court— Tes.
Also, that the element in this crime is the mental one of the intent to do bodily harm.
The Court—Yes, but that they are to infer though in the light of the evidence and the act itself.
Also, that if the prisoner was in such a state of intoxication as not to understand the nature of his acts, the jury have the right to consider that fact on the question of intent.
The Court — I have charged that if this prisoner, when he committed the act, was in such a state of mind as not to know the character of the act he was doing, and not to know the difference between right and wrong, then he would not be responsible for his- act.
Also, that the battery having been proven, any assault is. merged into the battery, and there can be no conviction for assault.
The Court — I decline.
The district attorney asked the court to charge that the intoxication is no defense.
The Court—Ho, it is not.
The District Attorney — By similar is not meant similar in shape.
The Court—Ho.
The District Attorney—But one which will inflict a similar wound.
The Court — Yes. One dangerous in its character, and one that will produce similar injuries to those of a knife or dagger.
Prisoner was convicted of a simple assault with a recommendation to the mercy of the court.