Mulloy v. State

• Decision Date: 08 March 1899
• Docket Number: 10476
• Parties: COOTE MULLOY v. STATE OF NEBRASKA
• Court: Nebraska Supreme Court

78 N.W. 525

58 Neb. 204

COOTE MULLOY v. STATE OF NEBRASKA

No. 10476

Supreme Court of Nebraska

March 8, 1899

ERROR to the district court for Box Butte county. Tried below before KINKAID, J. Affirmed.

AFFIRMED.

G. M Sullivan, for plaintiff in error:

Under a charge that accused committed an assault with intent to inflict great bodily injury he cannot be convicted of assault and battery. (Smith v. State, 34 Neb. 689; State v. McDevitt, 29 N.W. 461 [Ia.]; State v McAvoy, 35 N.W. 631 [Ia.]; Turner v. Muskegon, 50 N.W. 310 [Mich.]; Territory v. Dooley, 1 P. [Mont.] 747; State v. Marcks, 58 N.W. [N. Dak.] 25.)

C. J Smyth, Attorney General, and W. D. Oldham, Deputy Attorney General, for the state.

References: Murphey v. State, 43 Neb. 34; State v. Graham, 52 Ia. 720; State v. Schele, 52 Ia. 608; State v. White, 45 Ia. 325; Whitner v. State, 46 Neb. 144.

OPINION

NORVAL, J.

The essential part of the information filed by the county attorney in the district court of Box Butte county, and upon which the defendant in this case was tried and convicted, charged "that one Coote Mulloy, on the 11th day of January, in the year of our Lord one thousand eight hundred and ninety-seven, in the county of Box Butte and state of Nebraska, in and upon one William Mitchell, then and there being, unlawfully, feloniously, and purposely did make an assault on the said William Mitchell, and did strike, beat, and wound the said William Mitchell, with the intent of him, the said Coote Mulloy, to inflict a great bodily injury on the person of the said William Mitchell, contrary," etc. The defendant was found guilty of an assault and battery. Motions in arrest of judgment and for a new trial were made and overruled, and the court thereupon sentenced the defendant to pay a fine of $ 45 and the costs of prosecution. He has brought the case to this court for review.

The court below instructed the jury that they might find the defendant guilty of assault and battery, if justified by the evidence. It is insisted that this constituted reversible error, for the alleged reason the information is insufficient to permit the conviction of the defendant thereunder of the offense of which he was found guilty. The information was framed under section 17b of the Criminal Code, which declares: "That if any person assault another with intent to inflict a great bodily injury, he shall be punished, on conviction thereof, by imprisonment in the penitentiary for not less than one (1) year, nor more than five (5) years." It is very evident that the offense for which punishment is provided in said section necessarily includes a simple assault. The proposition is too plain to admit of discussion, and is well sustained by the authorities. (Orton v. State, 4 Greene [Ia.] 140; Bryant v. State, 41 Ark. 359; Lewis v. State, 33 Ga. 131; People v. Warner, 53 Mich. 78, 18 N.W. 568; State v. Grimes, 29 Mo.App. 470; Guy v. State, 1 Kan. 448; State v. Triplett, 52 Kan. 678, 35 P. 815; Stewart v. State, 5 Ohio 241.)

But it is strenuously urged that the offense described in said section 17b does not comprehend the lesser offense of assault and battery, and hence the conviction of such lesser offense was unauthorized. The statute, we have seen, embraces a simple assault, since the offense provided for by the section cannot be committed where no assault has been made, but might be perpetrated without a battery. While the section quoted does not necessarily comprehend a battery, it does include it in every case where the assault with the intent to commit great bodily injury is accompanied by a battery. This must be so, else there could be no conviction of the offense described in the section of the Criminal Code under consideration when the felonious assault is accompanied with, or followed by, an actual battery. It will be observed that the information before us charges not only an assault, but in express terms states that the defendant did "strike, beat, and wound" the prosecuting witness in the commission of the felonious assault. The offense charged is within the purview of the statute, and it is a well recognized principle of law that an information for a higher offense will support a conviction of a lower offense embraced in a higher one. (Criminal Code, sec. 487; Curry v. State, 4 Neb. 545; People v. Odell, 1 Dak. 197, 46 N.W. 601; Tyra v. Commonwealth, 2 Met. [Ky.] 1; Bolding v. State, 23 Tex. Ct. App. 172, 4 S.W. 579; State v. Schele, 52 Iowa 608, 3 N.W. 632; People v. Prague, 72 Mich. 178, 40 N.W. 243.) The crime set forth in the information is one of a higher grade and greater enormity than the crime of assault and battery. But the greater includes the lesser. As the information contains all the substantial averments necessary to let in proof of an assault and battery, it is sufficient to sustain a conviction of that offense.

In State v. Johnson, 58 Ohio St. 417, 51 N.E. 40, it was decided that a conviction for an assault and battery was proper under an indictment charging an injury to the person of another with intent to maim or disfigure.

In State v. Klein, 53 P. 364, it was held that where an information for assault with a deadly weapon is sufficient to charge an assault and battery, a conviction may be had for the latter offense.

In Fleming v. State, 18 So. 263, the indictment charged a felonious assault, and it was ruled that the accused could be convicted thereunder for an assault and battery with a weapon.

In State v. Keen, 10 Wash. 93, 38 P. 880, it was decided that actual violence, alleged as a fact in an information for assault with intent to commit rape, will justify a conviction of assault and battery.

Under an indictment for felonious assault it has been ruled that a conviction of assault and battery may be had. (Chacon v. Territory, 34 P. 448; Corley v. State, 20 S.E. 212.)

Counsel for the accused cite State v. McDevitt, 69 Iowa 549 and State v. McAvoy, 73 Iowa 557, 35 N.W. 630, to support the contention that the information was insufficient to sustain the verdict returned. The first of these cases is to the effect that the offense of assault and battery is not necessarily included in the crime of assault with intent to commit rape. In that case the court refused to instruct the jury that they might find the defendant guilty of an assault and battery. But that offense was not charged in the indictment, nor was it necessarily included in the crime therein set forth, since there might be an assault with intent to commit rape without an assault and battery. That case is in accord with our views herein. Had it been charged that a battery was committed in attempting to perpetrate the rape, then the indictment would have stated all the elements essential to the offense of assault and battery and warranted a conviction for that offense. This is the effect of State v. McAvoy, supra, which was a prosecution for an assault with intent to commit rape, the opinion in the case containing this language: "It was held by this court in State v. Graham, 52 Iowa 720, 2 N.W. 1050, that while assault and battery is not necessarily included in the crime of assault with intent to commit murder, still, as it was charged in the indictment that the assault was accompanied with actual violence to the person of the one assaulted, the defendant was properly convicted of assault and battery. But the defendant can be convicted of an offense distinct from the one specifically charged in the indictment only when such offense is an essential element of that charged, or when it is shown by proper averment in the indictment that a minor offense was in fact...