Mulloy v. State

• Decision Date: 08 March 1899
• Citation: 58 Neb. 204,78 N.W. 525
• Parties: MULLOY v. STATE.
• Court: Nebraska Supreme Court

58 Neb. 204

78 N.W. 525

MULLOY

v.STATE.

Supreme Court of Nebraska.

March 8, 1899.

Syllabus by the Court.

1. An information will sustain a conviction of a lower offense involved in that charged.

2. An information for an assault with intent to commit great bodily injury, framed under section 17b of the Criminal Code, will sustain a conviction for an assault and battery, when the information discloses, by proper averments, that such minor offense was in fact included in the commission of the one charged.

3. Section 478 of the Criminal Code is not confined in its application to prosecutions for crimes, for the punishment of which the statute had then made provision, but extends as well to prosecutions for offenses subsequently created.

4. Under said section, where the crime charged embraces different degrees (i. e. includes one or more lesser offenses), the accused, when justified by the evidence, may be convicted of any one of the lesser degrees or offenses.

Error to district court, Boxbutte county; Kinkaid, Judge.

Coote Mulloy was convicted of crime, and brings error. Affirmed.G. M. Sullivan, for plaintiff in error.

C. J. Smyth, Atty. Gen., and W. D. Oldham, Dep. Atty. Gen., for the State.

NORVAL, J.

The essential part of the information filed by the county attorney in the district court of Boxbutte 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 Boxbutte, 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 that 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 G. Greene, 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. 420; State v. Triplett, 52 Kan. 678, 53 Pac. 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 not only charges an assault, but, in express terms, states that the defendant did “strike, beat, and wound” the prosecuting witness in the commission of the felonious asault. 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. Cr. Code, § 487; Curry v. State, 4 Neb. 545;People v. Odell, 1 Dak. 197, 46 N. W. 601;Tyra v. Com., 2 Metc. (Ky.) 1;Bolding v. State, 23 Tex. 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 (Wash.) 53 Pac. 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 (Ala.) 18 South. 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 Pac. 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 (N. M.) 34 Pac. 448;Corley v. State (Ga.) 20 S. E. 212. In State v. Dennis, 2 Hardesty (Del.) 184, where the information contained charges of resisting an officer and of assault and battery, it was adjudicated that a conviction of either charge, or of a simple assault, was proper. Counsel for the accused cite State v. McDevitt, 69 Iowa, 549, 29 N. W. 459, 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...