Evans v. People

Decision Date10 November 1863
Citation12 Mich. 27
CourtMichigan Supreme Court
PartiesGeorge C. Evans v. The People

Heard October 23, 1863 [Syllabus Material] [Syllabus Material] [Syllabus Material]

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 which both parties offered proof. The question of the materiality of the proof to the issue, was not raised below, and is not in issue here. Clearly, persons skilled in treating diseases, are alone competent to testify upon that point: Greenl. Ev., § 440, note 2.

A. Williams, Attorney-General, for the people:

1. The information is not defective in the respect alleged--it clearly and distinctly charging the respondent with the crime of murder, thereby fully performing the office devolved upon a pleading of this kind.

It is one of the first principles of pleading, that there is only occasion to state the facts, for the purpose of informing the court, whose duty it is to determine the law arising upon those facts, and of apprising the opposite party of what is meant to be proved, in order to give an opportunity to answer or traverse: 1 Chit. Pl., 213; 1 Chit. Cr. L., 172; Steph. on Pl., 135.

This object is fully consummated by this information. A full description of the injury complained of, embracing every fact necessary for the people to prove, is contained in the information; the crime, as the fruit of those facts, is positively and unmistakably charged upon the respondent; and thus he is positively informed of that which he is to answer.

True, it is said in the information, "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," omitting to add the name, "Coban Balch."

We submit, that the word "aforesaid," as used in this part of the information, is sufficient without a repetition of the name of the deceased--the respondent being thus as unmistakably informed without, as with it, as to what he is to meet upon trial. And further: The word "aforesaid" is sufficiently comprehensive in its scope and meaning, to therein repeat, by its use in this clause of the information, for all the purposes of pleading, all that is thus clearly intended to be referred to. This would as necessarily include the object of the acts, as the acts themselves, and their results; for the word, "aforesaid," in its intelligent, retrospective relation, clearly and certainly refers to that which has been said or recited before in the information and which makes up the entire body of the offense: 1 Chit. Pl., 237-8-9; 1 Chit. Cr. L., 454, 172-3; 1 Comst. 180-4-5; 12 Wend. 425; 8 Barb. 550-1, 548; Niles v. Rhodes, 7 Mich. 374-8-9; Whart. Cr. L., § 1073; 1 Arch. Cr. Pl., p. 86 and note 1, and p. 118-2; 3 Dyer 305; 3 Park. Cr. R., 15 to 21.

If the case made by the information be clear, nice distinctions ought not to be regarded: 1 Chit. Pl., 238; 13 Johns. 482; 1 Chit. Cr. L., 172-3.

After verdict an expression must be construed in such a sense as will sustain the verdict: 1 Chit. Pl., 238.

2. The respondent was convicted of manslaughter; and, as an information for manslaughter, it is sufficient--no word of art being necessary to describe or charge this offense: Whart. Cr. L., §§ 399, 400; Arch. Cr. Pl., pp. 91, 92, and note 1; Dias v. The State, 7 Blackf. 20; 3 Dyer 304; 3 Park. Cr. R., 20.

3. The respondent's objection relates to the form, and not the substance of the information: 5 Wend. 10; 12 Wend. 425; 3 Denio 212; 8 Barb. 550-51, 548; Whart. Cr. L., § 427; 1 Arch. Cr. Pl., 118-2, note 2.

The objection being to the form of the information, apparent upon its face, it must have been taken by demurrer, or motion to quash the same, before the jury were sworn, and not after: 2 Comp. L., § 6055; 10 Mich. 372, 395.

4. No injury could have resulted to the respondent from allowing Hendershot to answer the question put to him. The witness residing near the deceased in his life time, could testify whether or not there was sickness, but perhaps not, there being sickness, as to the type of it--a point, however, not conceded.

OPINION

Campbell J.:

Evans, the plaintiff in error, was convicted of manslaughter in killing one Coban Balch. Error is brought on two grounds: First, That the information is insufficient to sustain the conviction; and Second, That evidence was received which was inadmissible.

The error alleged in the information is, that while, in the concluding portion, it is averred that Evans did "kill and murder," it does not there show the name of the person killed, and so contains no charge of the slaying of Balch. With this exception, the information is in the full form of a common law indictment for murder, and recites and alleges distinctly an assault, the infliction of mortal wounds, and that Balch died of those wounds; and in this part of the pleading the averments are full and technical as to time, place, manner, and all other matters essential. It is quite probable that if this information could...

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