State v. Schleagel

The opinion of the court was delivered by Valentine, J.: This was a criminal prosecution in the district court of Rush county, upon an information in which [328] the defendant, John Schleagel, was charged with committing an offense as follows: “One John Schleagel did then and there unlawfully, feloniously make an assault with a deadly weapon, to wit, a knife, which said knife, he, said John Schleagel, then and there held in his hand, in and upon Henry Scheurman, unlawfully, feloniously, and willfully, and, with malice aforethought, did stab and wound him, said Henry Scheurman, with the intent then and there the said Henry Scheurman to kill and murder.” The case was tried before the court and a jury, and the jury rendered the following verdict, to wit: “We, the jury impaneled and sworn in the above-entitled case, do, upon our oaths, find the defendant, John Schleagel, guilty of felonious assault.” Upon this verdict, the court below rendered a judgment sentencing the defendant to be imprisoned in the penitentiary at hard labor for the term of one year; and the defendant' appeals to this court. The defendant claims that the court below erred in impaneling the jury; in refusing to permit certain evidence to be introduced on the trial; in instructing the jury; in refusing to grant a new trial, and in sentencing the defendant upon the verdict of the jury. Passing over the first alleged error, we shall first consider the alleged error, or rather errors, of the court in refusing to permit the defendant to introduce certain evidence. The evidence introduced was to some extent conflicting, but there was evidence introduced tending to show, among others, the following facts: A difficulty arose, and a fight occurred between the defendant, John Schleagel, and another person by the name of Henry Scheurman, in a certain storeroom in the town of Otis, in Eush county. Scheurman was the larger and the stronger man of the two. They were separated by friends, and Schleagel left the storeroom, went outside, and onto the porch. Scheurman followed him, struck him in the face, and knocked him down. Schleagel then, and for the first'time, drew from his pocket his pocketknife, and for the first time during the trouble used it, and struck Scheurman with it. The evidence for the defend [329] anfc tended to show that Scheurman was all the time the aggressor; but the evidence for the state tended to show otherwise, and that Schleagel assaulted Scheurman with the knife inside of the storeroom as well as outside. The defendant claimed that he was acting solely in self-defense at all times during the trouble; and there was evidence enough upon this subject, whether true or not, to go to the jury. Upon this theory of self-defense, Schleagel offered to introduce testimony regarding a similar difficulty which had occurred between himself and Scheurman a short time previously and leading to this last difficulty, in which previous difficulty Schleagel claimed that Scheurman was also the aggressor; but the court excluded the evidence, and the defendant excepted. We think this was error. (The State v. Scott, 24 Kas. 68.) The defendant also offered to prove by another witness what the general reputation of the defendant, John Schleagel, was as to his being a peaceable, law-abiding citizen in the community where he lived. Scheurman also lived in that vicinity. This evidence was excluded by the court, and the defendant excepted. We also think that this was error. (See The State v. Douglass, 44 Kas. 618, 627; Kistler v. The State, 54 Ind. 401; The People v. Doggett, 62 Cal. 27.) The court also instructed the jury, among other things, as follows: “No. 4. You are further instructed, that under the laws of this state that every person who shall assault, with intent to commit manslaughter or other felony, not under circumstances as would constitute an assault with a deadly weapon, as described in the preceding instruction, shall be guilty of a felonious assault.” This instruction we think is erroneous. There is no single or general offense under the statutes named “felonious assault;” nor are the words “felonious assault” described or defined or even mentioned by any statute. There are, in fact, however, many offenses which might come under the general name of “felonious assault,” as an assault with the intent to commit [330] rape, robbery, burglary, manslaughter, murder, or any other felony. The court also instructed the jury as follows: “No. 8. If you shall not believe from the evidence beyond a reasonable doubt that the defendant is guilty of an assault with a deadly weapon with intent to kill, as explained in the preceding instruction, then you cannot find him guilty of an assault with a deadly weapon with intent to kill; but if you shall believe from the evidence beyond a reasonable doubt that the defendant, at the time and place charged in the information, committed a felonious assault upon the person of Henry Scheurman, as explained in instruction number 4, then you shall find the defendant guilty of a felonious assault; but if you shall not- believe from the evidence beyond a reasonable doubt that he is guilty of an assault with a deadly weapon with intent to kill, nor of a felonious assault, as explained in the preceding instruction, but that he is guilty of an assault and battery, as explained in instruction number 5, then you shall find him guilty of assault and battery.” The court also instructed the jury with regard to finding ing the defendant not guilty. Also, before the jury retired for deliberation, the court gave them four separate copies of verdicts, which read as follows: “We, the jury impaneled and sworn in the above-entitled case, do, upon our oaths, find defendant, John Schleagel, guilty of assault with intent to kill, as charged in the information.” “We, the jury impaneled and sworn in the above-entitled case, do, upon our oaths, find defendant, John Schleagel, guilty of felonious assault.” “We, the jury impaneled and sworn in the above-entitled case, do, upon our oaths, find defendant, John Schleagel, guilty of assault and battery.” “We, the jury impaneled and sworn in the above-entitled case, do, upon our oaths, find defendant, John Schleagel, not guilty.” Now the jury did not find that the defendant was guilty of assault with intent to kill, nor assault and battery. Then what did the jury find the defendant guilty of? What was the “felonious assault” of which the jury found the defendant guilty? We think the court below also erred in not requiring the [331] jury to render a more definite and intelligible verdict; and, considering all these errors together, we think the court below also erred in refusing to grant to the defendant anew trial; and for these errors the judgment of the court below must be reversed, and the cause remanded for a new trial. All the Justices concurring.