State v. Scarlett

45 P. 602, 57 Kan. 252, 1896 Kan. LEXIS 139

• Court: Supreme Court of Kansas
• Decided: July 11, 1896
• Docket: No. 10567
• Status: Published

Opinion

Allen, J.

Although there are 11 assignments of error it is only necessary to consider the last one, as that compels a reversal of the judgment. Section 239 of the Code of Criminal Procedure reads as follows :

“Upon the trial of any indictment or information for any offense, where by law there may be conviction of different degrees of such offense, the jury, if they convict the defendant, shall specify in their verdict of what degree of the offense they find the defendant guilty.”

The second count of the information was drawn under section 42 of the Act Regulating Grimes and. Punishments, and while somewhat defective in form is, as against a motion in arrest of judgment, sufficient to sustain a conviction. This count necessarily includes not only the offense defined by section 42, but also assault and battery and simple assault.

The verdict fails to specify the degree of the offense of which the jury convicted the defendant. Are assault and battery and simple assault inferior degrees of the offense charged? That they are necessarily included within the charge, and that a conviction may be had of either assault and battery or simple assault under this count of the information, is beyond question. It is not so clear, however, that they are different degrees of the offense within the meaning-of section 239 of the Code of Criminal Procedure> The writer is of the opinion that they are not, and that the verdict in this case amounts to a conviction of the offense defined in section 42, there-being but one degree of that offense ; and that section 239 of the Code only imperatively requires a specification of the degree of the offense where, under the-statute., there are different degrees of an offense named; as of murder, manslaughter, burglary, arson,, robbery, and other offenses divided into degrees. The majority of the Court, however, hold that every offense included within a criminal charge is to be-treated as a degree of the major offense ; and that the-j ury must specify in their verdict the degree of which they find the defendant guilty. In the cases heretofore decided by this Court, all inferior offenses necessarily included within the charge have been generally treated as different degrees of one crime. Guy v. The State of Kansas, 1 Kan. 448; The State v. Reddick, 7 id. 143; The State v. Huber, 8 id. 447; The State v. O’Kane,. 23 id. 244; The State v. Burwell, 34 id. 312. As tending to support the contrary rule, see the following-cases : The State v. Adams, 20 Kan. 311; The State v. Jennings, 24 id. 642; The State v. Treadwell, 54 id. 513.

¥e find no substantial error in any of the other proceedings of the Court, but, for the refusal to grant a new trial on account of the defective form of the verdict, the judgment must be reversed, and a new trial ordered.

Martin, C. J., and Johnston, J., concurring. Allen, J., dissenting.