Hase v. State

• Citation: 74 Neb. 493,105 N.W. 253
• Parties: HASE v. STATE.
• Decision Date: 05 October 1905
• Court: Nebraska Supreme Court

74 Neb. 493

105 N.W. 253

HASE

v.STATE.

Supreme Court of Nebraska.

Oct. 5, 1905.

Syllabus by the Court.

A criminal information must charge ex plicitly all that is essential to constitute the offense sought to be described. Nothing can be interpolated therein, and its averments will not be aided by intendments.

It is not necessary to charge the offense in the exact language of the statute, provided the words employed are equivalent in meaning to those contained therein.

Where words appear in an information which might be stricken out, leaving an offense sufficiently charged, and such words do not tend to negative any of the essential averments therein, they may be treated as surplusage, and be entirely rejected.

By the application of the foregoing principles, the information herein is found to be sufficient to charge the crime of assault with intent to commit a murder.

Error to District Court, Lancaster County; Holmes, Judge.

William Hase was convicted of assault with intent to commit murder, and brings error. Affirmed.F. B. Righter and L. C. Burr, for plaintiff in error.

Norris Brown, Atty. Gen., W. T. Thompson, Deputy Atty. Gen., J. L. Caldwell, F. M. Tyrrell, and C. E. Matson, for the State.

BARNES, J.

The plaintiff in error, William Hase, was convicted in the district court of Lancaster county of the crime of assault with intent to commit murder. He was sentenced to the penitentiary for the term of three years, and now prosecutes error.

The only question presented for our consideration is whether the information on which he was tried was sufficient to charge the crime of which he was convicted. The charging part of the information reads as follows: “* * * That William Hase, late of the county aforesaid, on the 2d day of October, A. D. 1904, in the county of Lancaster and state of Nebraska aforesaid then and there being, did unlawfully and feloniously in and upon one Frank Williams then and there unlawfully, feloniously, purposely, and of deliberate and premeditated malice an assault with a dangerous and deadly weapon, to wit, a knife held in the hand of him, the said William Hase, then and there, with the intent of him, the said William Hase, then and there and thereby the said Frank Williams unlawfully, feloniously, purposely, and maliciously to kill and murder. * * *” It is contended that there is no averment contained in the information describing the offense; that just after the word “malice,” and before the words “an assault,” the charging verb “make,” or “did make,” is omitted, and it is insisted that this renders the information defective in substance and insufficient to charge any offense whatever. To support this contention, counsel cite Smith v. State, 21 Neb. 552, 32 N. W. 594, and Schaffer v. State, 22 Neb. 557, 35 N. W. 384, 3 Am. St. Rep. 274, together with a number of authorities from other states. It is claimed that Smith v. State and Schaffer v. State cover the exact question involved in this inquiry and support the contention of the accused. From an examination of those cases it appears that the question here under consideration did not arise in either of them. Smith v. State holds that an information must charge explicitly all that is essential to constitute the offense; that it cannot be aided by intendments, but must positively and explicitly state what the prisoner is called upon to answer; while in Schaffer v. State it was held that, where the purpose to kill is not averred by way of description of the offense, the omission cannot be aided by intendment. That these propositions are sound there can be no doubt, but they fail to decide the point in controversy here. Counsel has also directed our attention to State v. Halder, 2 McCord, 377, 13 Am. Dec. 738. In that case the word “did” was not contained in the indictment at all, and it was held that such omission rendered it fatally defective.

By referring to the charging part of the...