State v. Fisher

8 Kan. 208

• Court: Supreme Court of Kansas
• Decided: July 15, 1871
• Status: Published

Opinion

The opinion of the court was delivered by

Yalentine, J.:

This was an action on a criminal information in the district court of Atchison county. The defendant was tried, convicted, and sentenced, and the only error complained of is the sentence of the court below.

The information charged, among other things, in substance that on the 5th day of January, 1871, the defendant Joseph Eisher, assaulted and wounded one James A. Eisher with a deadly weapon, a loaded revolver, by shooting at said James A. Eisher with the intent to hill him, and that ah this was done on purpose, and with malice aforethought. These facts, as we think, constitute an offense under either section 38 or section 42, of the act concerning crimes and punishments: Gen. Stat., 324, 325.

The jury found the defendant guilty of wounding James A. Eisher in the manner charged, under circumstanues which would have constituted manslaughter in the fourth degree if death had ensued from said wounding. This verdict does not state facts sufficient to constitute an offense under section 38 of said act because it does not show that the wounding was done “on purpose, and of malice aforethought;” but it does state facts sufficient to constitute an offense under section 42 of said act. Under this last mentioned section the court below sentenced the defendant to be imprisoned in the penitentiary for the term of two years. "We perceive no error in this sentence. The judgment of the court below must therefore be affirmed.

Kingman, O. J., concurring. Ereweb, J., not sitting in the case.