Barnard v. State

• Decision Date: 13 November 1894
• Citation: 88 Wis. 656,60 N.W. 1058
• Parties: BARNARD v. STATE.
• Court: Wisconsin Supreme Court

88 Wis. 656

60 N.W. 1058

BARNARD

v.STATE.

Supreme Court of Wisconsin.

Nov. 13, 1894.

Error to circuit court, Marinette county; Samuel D. Hastings, Jr., Judge.

John Barnard was convicted of assault with intent to commit rape, and appeals. Affirmed.

The defendant was tried on the following information: “I, Hirman O. Fairchild, district attorney for said county, hereby inform the court that on the 19th day of April, 1893, at said county, John Barnard did, upon one Jennie Vander Bogart, a female child under the age of twelve years, feloniously make an assault, and her, the said Jennie Vander Bogart, then and there feloniously did carnally know and abuse, against,” etc. The verdict was: “Guilty of an assault with intent to commit rape.” Motions in arrest of judgment and for a new trial were denied. Judgment was entered and sentence passed. From the judgment the defendant brings this writ of error.Thomas R. Hudd, for plaintiff in error.

J. L. O'Connor, Atty. Gen., and J. M. Clancy, Asst. Atty. Gen., for the State.

NEWMAN, J. (after stating the facts).

The plaintiff in error propounds three grounds of error in the denial of the motion in arrest of judgment: (1) Because the information does not charge any offense known to the law, or as required by the statute in such case made and provided. (2) That the verdict was not rendered, received, or recorded as by law and practice of the court is provided. (3) That the record does not show that the attorney for the defendant was in court when the verdict was rendered, received, and recorded, and that said attorney was not notified to be in attendance. Only the first ground stated could be ground for a motion in arrest of judgment. Motion in arrest of judgment can be founded only on defects which appear on the face of the record. 1 Bish. Cr. Proc. (3d Ed.) § 1285; 12 Am. & Eng. Enc. Law, 147b, and notes. The motion does not lie for errors occurring on the trial, such as can be made apparent only by a bill of exceptions. The statute on which the information was intended to be founded is Revised Statutes, section 4382: “Any person who shall unlawfully and carnally know and abuse any female under the age of twelve years, shall be punished,” etc. The information omits the word “unlawfully.” It is claimed that by reason of that omission it fails to charge any offense known to the law. The rule governing this question is stated by Chitty as follows (1 Chit. Cr. Law, p. *241; Reg. v. Prince, L. R. 2 Cr. Cas. 161): “The term ‘unlawfully,’ which is frequently used in the description of the offense, is unnecessary whenever the crime existed at common law, and is manifestly illegal. But if a statute, in describing the offense which it creates, used the word, the indictment founded on the act will be bad if it is omitted.” This is quoted by Bishop (volume 1, Cr. Proc. 3d Ed. § 503) as the law here. The offense with which the defendant is charged is a crime at common law. 2 Bish. Cr. Law (8th Ed.) § 1133; People v. McDonald, 9 Mich. 150. It was not created an offense by statute. And the act is manifestly illegal. Under no circumstance could it be lawful. So it was not necessary to charge the act as being “unlawfully” committed. Besides, the word “feloniously,” which is used, is fairly equivalent, in connection with the illegal act charged, to the word “unlawfully,” for the purpose of charging the manifestly illegal act to have been “unlawfully” done. This has been so held in many cases, some of which are cited in the brief of the defendant in error. It never has been the law of this state that the attorney of the defendant must be notified so that he can be present at the reception of the verdict received in regular session. Smith v. State, 51 Wis. 615, 8 N. W. 410;Martin v. State, 79 Wis. 165, 48 N. W. 119. The motion in arrest of judgment was properly overruled.

The motion for a new trial was made on the following grounds: (1) Because the instructions of the court were erroneous, misleading, and contrary to the law. (2) That the verdict is contrary to the evidence, and not supported by the evidence or the law. (3) The court erred in the exclusion of evidence and in the admission of evidence. The first instruction of which complaint is made is that the court said to the jury: “The testimony is of such a character as to clearly establish,--and it is a conceded fact, conceded by counsel for the prisoner,--that on the 19th of April last some person did assault and abuse this little girl; that she was injured by some man in the shed, that has been described by the testimony, on that day.” The fact seems to have been fully established by the evidence, so as not to be fairly disputable. It does not seem to have been disputed. If counsel did not in fact concede it, he should at the time have called the attention of the court to the mistake, and not have waited until it was too late to correct it. It was not an error to say that the evidence was sufficient to establish it, when the...