State v. Eschbach

De Witt, J. It is observed that there are several elements constituting the offense described in section 60 of the Criminal Laws. Those elements are: 1. An assault; 2. That it is with a deadly weapon; 3. That it is with the intent to inflict upon the person of another a bodily injury; 4 a. Either where no considerable provocation appears, or 4 b; Where the circumstances of the assault show an abandoned and malignant heart. The information charged all the elements of the offense. There were two counts. The first count charged the offense with the element as noted above under 4 a, and the second [401] count charged the offense with the element as noted above under 4 b. The verdict of the jury found the defendant guilty of an assault with a deadly weapon. The verdict thus found element 1, and element 2, as above noted. It did not find the intent to inflict upon the person of another a bodily injury; nor did it find either that there was no considerable provocation, or that the circumstances of the assault showed an abandoned or malignant heart. It is clear that the jury did not find the defendant guilty of felony, because they omitted to find the elements required to constitute the felony. The verdict found simply an assault, and it found that that assault was made with a deadly weapon. (See State v. Carroll, ante, p. 246; Territory v. Willard, 8 Mont. 328; Territory v. Stocker, 9 Mont. 6.) The judgment being for a felony, upon a verdict which found only a misdemeanor, the judgment must be reversed, and the case remanded, and with directions to the district court to assess a penalty upon the verdict for an assault, as provided in section 58, Criminal Laws; and, if a filie is enforced by imprisonment, then the imprisonment already undergone by defendant shall apply in satisfaction of such confinement, as far as it satisfies the same. Reversed. Harwood, J., concurs. Pemberton, C. J., did not participate in the hearing or determination of this case.