Cross v. State

• Decision Date: 10 May 1882
• Citation: 55 Wis. 261,12 N.W. 425
• Parties: CROSS v. STATE OF WISCONSIN.
• Court: Wisconsin Supreme Court

55 Wis. 261

12 N.W. 425

CROSS

v.STATE OF WISCONSIN.

Supreme Court of Wisconsin.

Filed May 10, 1882.

Error to municipal court, Milwaukee county.

Argued by Adolf Herdegan, for plaintiff in error.

H. W. Chynoweth, Asst. Atty. Gen., for defendant in error.

TAYLOR, J.

The plaintiff in error was tried upon an information for an assault with an intent to murder. The following is a copy of the information, (after the title:) “I, W. C. Williams, district attorney for said county, hereby inform the court that on the twenty-eighth day of November, 1881, at said county, Isaac W. Cross, with force and arms, in and upon one John Schuk, he, the said John Schuk, in the peace of the state then and there being, unlawfully and feloniously did make an assault, he, the said Isaac W. Cross, then and there being armed with a dangerous weapon, to-wit, with a revolver pistol, with intent then and there to kill and murder him, the said John Schuk, against the peace and dignity of the state of Wisconsin.” To this information the plaintiff in error pleaded not guilty. He was tried and convicted of the offence charged in the information, and sentenced to imprisonment for five years. After the verdict, and before judgment, the plaintiff in error moved in arrest of judgment on the ground that the information was insufficient, which motion was overruled and exception taken. The information was under section 4376, Rev. St. 1878, as amended by chapter 79, Laws 1881, which reads as follows: “Any person being armed with a dangerous weapon who shall assault another with intent to rob or murder, shall be punished by imprisonment in the state prison not more than 15 years nor less than one year.”

The motion in arrest was based upon two grounds: First, that it is bad because it does not charge that the assault was made with malice aforethought, or with a premeditated design to kill and murder the said Schuk;” and, second, because it does not sufficiently show that the accused was armed with a dangerous weapon. It was held by this court in the case of State v. Fee, 19 Wis. 562, that an indictment under section 35, c. 164 Rev. St. 1858, which is in the identical language of section 4376, Rev. St. 1878, except as to term of punishment, was insufficient because it did not charge the assault to have been made feloniously and “with malice aforethought,” with intent,etc.; but in Kilkelly v. State, 43 Wis. 604, it was held that an information based upon the same section of the Revised Statutes of 1858 was sufficient in the form of the one filed in the case at bar, without the words “of his malice aforethought,” or other equivalent words. This last opinion was based upon the change made in the criminal laws of this state by chapter 137, Laws 1871. Section 20 of said chapter 137, now section 4669, Rev. St. 1878, reads as follows: “When the offence charged has been created by any statute, or the punishment of such offence has been declared by any statute, the indictment or information shall, after verdict, be held sufficient to warrant the punishment prescribed by the statute, if it describe the offence in the words of the statute, or in words of substantially the same meaning; and words used in the statutes to define a public offence need not be strictly pursued in charging an offence under such statutes, but other words conveying the same meaning may be used.” Justice Lyon, in commenting upon the change of the law worked by the enactment of section 20, c. 137, Laws 1871, says: “We borrowed the act of 1871 from the statutes of Michigan, in which will be found both of the above sections in substance. In 1866 the supreme court of that state held that under section 6059 (which corresponds with our section 20, c. 137, Laws 1871, now section 4669, Rev. St. 1878) an information charging an assault with intent to kill and murder contains a sufficient description of that offence. Rice v. People, 15 Mich. 9. The Michigan statute describes the offence as an assault ‘with intent to commit the crime of murder.’ Our statute is the same. The statute having received a construction by the highest tribunal of that state before it was adopted here, we are bound by that construction. Drapre v. Emerson, 22 Wis. 147;Perkins v. Simonds, 28 Wis. 90;Weisner v. Zann, 39 Wis. 188. It must be held, therefore, that the information sufficiently charges that the plaintiff in error assaulted Mapes with intent to murder him. “The information which the court had under consideration in that case charged that on a day and at a place therein named, he “being armed with a dangerous weapon, to-wit, a knife, did feloniously, with and by means of such deadly weapon then in his hand, make an assault upon one Charles Mapes, and him, the said Charles Mapes, did then and there with such deadly weapon cut, beat, and ill-treat, with intent to murder the said Charles Mapes against the peace,” etc. The case of State v. Fee, was affirmed, and followed by this court in Bonneville v. State, 11 N. W. REP. 427. The information in that case and the one in the case at bar are in all respects the same upon the point in question. The objection that it should have charged the assault to have been made “with malice aforethought,” as well as feloniously, was properly overruled. The objection that the allegations in the information do not show that the plaintiff in error was armed with a dangerous weapon, we think was also properly overruled. Under the decisions above cited it would probably be unnecessary to state the kind of weapon, except to state that it was a dangerous one; but if it be necessary, it was sufficiently stated in the information. Section 4659, Rev. St. 1878, provides that no information shall be deemed invalid, nor shall the trial, judgment, or other proceeding thereon be affected, by certain things named, and then adds: nor “by reason of any other defect or imperfection in matters of form, which shall not tend to the prejudice of the defendant.” We are unable to see how the defendant could be prejudiced by reason of the neglect of the district attorney to state that the “revolver pistol” was at the time “loaded with powder and a leaden or other bullet.”

The defendant was notified by the information that he was charged with making an assault, being armed with a dangerous weapon, to-wit, a “revolver pistol,” with intent to murder. It might be material on the trial,...