Alyea v. State

• Decision Date: 19 June 1901
• Citation: 86 N.W. 1066,62 Neb. 143
• Parties: ALYEA v. STATE.
• Court: Nebraska Supreme Court

62 Neb. 143

86 N.W. 1066

ALYEA

v.STATE.

Supreme Court of Nebraska.

June 19, 1901.

Syllabus by the Court.

1. An information for an assault with intent to commit great bodily injury, framed under section 17b of the Criminal Code, is sufficient where the offense is charged in the language of the statute, without stating the means with which the assault was committed.

2. A conviction of an assault and battery is improper under an information charging an assault with intent to inflict great bodily injury, where the averments therein do not include a battery.

Error to district court, Madison county; Cones, Judge.

Leroy Alyea was convicted of assault, and brings error. Reversed.Allen & Reed, for plaintiff in error.

F. N. Prout, Atty. Gen., and Norris Brown, Dep. Atty. Gen., for the State.

NORVAL, C. J.

Leroy Alyea was tried upon an information charging him with making a felonious assault upon one Peter F. Sullivan, with intent to inflict great bodily injury, convicted of an assault and battery, and sentenced to the county jail for a period of 30 days.

The first assignment of error challenges the sufficiency of the information, the charging part of which is as follows: “That the defendant, Leroy Alyea, then and there being in said county and state, on or about the 7th day of July, in the year of our Lord nineteen hundred, in and upon Peter F. Sullivan, then and there being, unlawfully and maliciously did make an assault, with intent him, the said Leroy Alyea, then and there to inflict great bodily injury upon him, the said Peter F. Sullivan.” The information was framed under section 17b of the Criminal Code, and charges the offense in the language thereof. But it is strenuously insisted that this is insufficient, since the act creating the offense designates no particular fact or facts in defining the offense. Further, the particular facts constituting the assault should have been set forth in the information. The precise question now urged upon our attention was passed upon adversely to the contention of the learned and distinguished counsel for the prisoner in Murphey v. State, 43 Neb. 38, 61 N. W. 491, and Smith v. State, 58 Neb. 531, 78 N. W. 1059. It was ruled in those cases that in a prosecution under section 17b of the Criminal Code the information is sufficient which charges the offense in the language of the statute. The information in the case at bar follows the wording of the statute, and under those decisions, which we adhere to,...