Hodgkins v. State

• Decision Date: 18 January 1893
• Citation: 36 Neb. 160,54 N.W. 86
• Parties: HODGKINS ET AL. v. STATE.
• Court: Nebraska Supreme Court

36 Neb. 160

54 N.W. 86

HODGKINS ET AL.

v.STATE.

Supreme Court of Nebraska.

Jan. 18, 1893.

Syllabus by the Court.

1. It is not necessary, in an information or indictment, to use the precise words of the statute. It is sufficient if the words used are identical in meaning with those used in the statute.

2. In an information for assault and battery, it was alleged that the defendants “did willfully and maliciously make an assault upon * * *, and did then and there unlawfully strike, beat, and wound,” etc. Held sufficient.

3. Objection to an information on the ground that it was verified before a notary public, instead of a magistrate, should be made before going to trial; otherwise, it will be held to have been waived.

Error to district court, Lancaster county; Field, Judge.

Miles Hodgkins and Frank Trumble were convicted of assault and battery, and bring error. Affirmed.Billingsley & Woodward and Robert J. Greene, for plaintiffs in error.

George H. Hastings, Atty. Gen., for the State.

POST, J.

The first question presented by the record in this case is the sufficiency of the information, which is here set out: “In the district court of Lancaster county, Nebraska, The State of Nebraska, Plaintiff, vs. Hodgkins and Frank Trumble, Defendants. State of Nebraska, Lancaster county,--ss.: John W. Mussetter, being first duly sworn, on his oath complains that the defendants, Milo Hodgkins and Frank Trumble, for that said Milo Hodgkins and Frank Trumble, at the county of Lancaster and state of Nebraska, on the 13th day of March, 1890, in and upon the bodies of Marshal Stein and O. W. McAllister, did then and there, willfully and maliciously, make an assault upon, and them, the said Marshal Stein and the said O. W. McAllister, unlawfully did strike, beat, and wound, contrary to the statutes in such case made and provided, and against the peace and dignity of the state of Nebraska. John W. Mussetter. Subscribed in my presence, and sworn to before me, this 15th day of March, A. D. 1890. M. A. Cameron, Notary Public.” By reference to section 17 of the Criminal Code, defining assault and battery, it will be observed that the language thereof is: “If any person shall unlawfully assault or threaten another, or shall unlawfully strike or wound another, he shall, upon conviction, be fined,” etc. The language of the information is “did willfully and maliciously make an assault upon * * *, and unlawfully did strike, beat, and wound, contrary to the statute.” The information is sufficient. It is not necessary, in charging an offense, to use the precise words of the statute. It is sufficient if words are used which are identical in meaning to those in the statute. Whitman v. State, 17 Neb. 224, 22 N. W. Rep. 459. The words “willfully and maliciously” are equivalent to the term “unlawfully.”

2. It is argued that there is no valid information, for the reason that the charge upon which plaintiffs in error were tried was sworn to before a notary public. It has been held by this court in Richards v. State, 22 Neb. 145, 34 N. W. Rep. 346, and Davis v. State, 31 Neb. 247, 47 N. W. Rep. 854, that the information should be sworn to before some judicial officer. In the last-above...