12 Mich. 27 (Mich. 1863), Evans v. People

Citation:12 Mich. 27
Opinion Judge:Campbell J.:
Party Name:George C. Evans v. The People
Attorney:Ashley & Chipman, J. T. Holmes and G. V. N. Lothrop, for plaintiff in error: A. Williams, Attorney-General, for the people:
Case Date:November 10, 1863
Court:Supreme Court of Michigan
 
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12 Mich. 27 (Mich. 1863)

George C. Evans

v.

The People

Supreme Court of Michigan

November 10, 1863

Heard October 23, 1863

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Error to Kent Circuit.

The plaintiff in error was informed against for murder, as follows:

"State of Michigan, Kent County, ss. The Circuit Court for the County of Kent. E. G. D. Holden, prosecuting attorney for the county of Kent aforesaid, for and in behalf of the people of the State of Michigan, comes into said court, in the March term thereof, A. D. 1863, and gives it here to understand and be informed, that George C. Evans, late of the city of Grand Rapids, of the county of Kent, on the eighteenth day of February, eighteen hundred and sixty-three, at the city of Grand Rapids, county aforesaid, in and upon one Coban Balch, in the peace of the people of the state aforesaid then and there being, feloniously, willfully, and of his malice aforethought, did make an assault, and that the said George C. Evans, then and there being, feloniously, willfully, and of his malice aforethought, did strike, beat and kick the said Coban Balch, with his hands, fists and feet, in and upon the head, breast, sides and other parts of the body of him, the said Coban Balch, and did then and there feloniously, willfully, and of his malice aforethought, knock the said Coban Balch down, with great force and violence, then giving unto the said Coban Balch, then and there, as well by the beating, striking and kicking of him, the said Coban Balch, in manner and form aforesaid, as by knocking him, the said Coban Balch, down, as aforesaid, several mortal strokes, wounds and bruises, in and upon the head, breast, sides, and other parts of the body of him, the said Coban Balch, of which said mortal strokes, wounds and bruises, he, the said Coban Balch, from the eighteenth day of February, A. D. 1863, until the twentieth day of February, 1863, did languish, and languishing, did live; on which said 20th day of February, in the year aforesaid, the said Coban Balch, at Grand Rapids, in the county and state aforesaid, of the several mortal strokes, wounds and bruises aforesaid, died; and so the court is informed that George C. Evans, in manner and form aforesaid, feloniously, willfully, and of his malice aforethought, did kill and murder, contrary to the statute in such case made and provided, and against the peace and dignity of the state of Michigan.

"E. G. D. Holden,

"Prosecuting Attorney for Kent County."

On this information defendant was convicted of manslaughter, and sentenced to the state prison for two years and six months. The case was removed to this court for review, on writ of error and bill of exceptions. The questions raised by the exceptions sufficiently appear by the opinion.

Judgment affirmed.

Ashley & Chipman, J. T. Holmes and G. V. N. Lothrop, for plaintiff in error:

1. The information purports, in the main, to follow the common law forms for indictments for murder; yet, in the conclusion, it does not aver that the said George C. Evans did kill and murder the deceased.

Our statute of 1855, Compiled Laws, p. 1587, § 1, provides that, in all indictments for murder, it shall not be necessary to state the manner in which, and the means by which, the death of the deceased was caused, declaring it to be sufficient to charge that the defendant did willfully, and of his malice aforethought, kill and murder the deceased.

Since this statute became the law, a statement in an indictment for murder, of the manner in which, or the means by which, the death of the deceased was caused, performs no office, and is surplusage.

The statute of 1859, p. 392, § 4, applies the statute above mentioned, relating to indictments, to informations.

At common law, after stating the manner in which, and the means by which, death was caused, it was necessary to charge that the accused did, with malice, etc., kill and murder the deceased. It was not sufficient to charge that the accused did kill and murder. See Arch. Cr. Pl., 301, 884; Dias v. State, 7 Black. 20; 1 Chit. Cr. L., 243.

Our statute of 1855 is a recognition of this rule, as applicable to common law indictments. It simply provides, in substance, that the concluding charge of a common law indictment shall be sufficient, and uses almost the identical language of the common law text writers upon that subject.

The court never, in criminal cases, take anything by intendment or implication: Long's Case, 5 Coke; 4 Bl. Com., 310, and note; 1 Chit. Cr. L., 230.

2. Upon the question as to the prevalence of erysipelas in the neighborhood of the residence of the deceased, physicians alone were competent to testify.

That was a question of fact, about...

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