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90 Kan. 105

State v. Holman

Supreme Court of Kansas

Decided June 7, 1913

Supreme Court of Kansas · decided 1913-06-07

<p>Appeal from Crawford district court.</p>

Key passage — most relied on by later courts

““An ‘assault’ has been variously defined as: “ ‘An attempt to commit a violent injury upon the person of another; “ ‘An attempt to offer, with force or violence, to do a corporal hurt to another, whether from malice or wantonness, with such circumstances as denote, at the time, an intention to do it, coupled with a present ability to carry such intention into effect; “ ‘An offer or attempt to do a corporal injury to another.’ (3 Cyc. 1020, 1021; see, also, 1 Words & Phrases, pp. 532-538.)””

quoted by 1 later decision, including State v. Linville

Good law ✅— No negative treatment on recordhow we know

Affirmed · Decided 1913-06-07

How this case has been cited

Cited by 3 later decisions — most recently May 1980

3 state decisions

1019131920193019401950196019701980decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

¶1The opinion of the court was delivered by

Porter, J.;

¶2The motion to quash the information was properly overruled. An “assault” has been variously defined as:

“An attempt to commit a violent injury upon the person of’ another;
“An attempt to offer, with force or violence, to do a corporal hurt to another, whether from malice or wantonness, with such circumstances as denote, at the time, an intention to do it, coupled with a present ability to carry such intention into effect;
“An offer or attempt to do a corporal injury to another.” (3 Cyc. 1020, 1021; see, also, 1 Words & Phrases, pp. 532-538.)

¶3The information states the facts, showing what defendant did, which any person of ordinary intelligence *106knows constitutes an assault, and further alleges that these acts were committed by him with the intent to commit a rape upon the person of the complaining witness. Section 41 of the crimes act (Gen. Stat. 1909, §2529), under which the defendant was prosecuted, does not require that the information use the word assault. It is sufficient to allege acts constituting an assault followed by an averment that they were done with the intent to commit an offense enumerated in that section of the act.

¶4The only serious question presented by the appeal is this: The defendant did not testify. The court gave the following instruction:

“Under the law of this state the defendant is a competent witness to testify in his own behalf, but he is not obliged to do so; and the fact of his not so testifying is not to be considered or construed by you as in any manner affecting the defendant’s guilt or innocence in this case.”

¶5In the argument an attorney who assistéd the county attorney in prosecuting the case read the foregoing instruction very carefully to the jury and said to them:

“I want you to take this instruction to the jury room and consider it, and want you to consider it very particularly because it is very important.”

¶6It is insisted that the purpose and effect of the statement was to direct the jury’s attention to the failure of the defendant to take the witness stand in his own behalf. We confess that we are unable to discover any other excuse for the statement. As a general rule any instruction which the court has given is a proper subject of comment by an attorney in the argument; but the obvious purpose here was not commendable.

¶7The evidence of the defendant’s guilt is so plain that we do not feel warranted in holding that the matter was prejudicial, and the judgment will be affirmed.

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