People v. Ellsworth

• Decision Date: 04 March 1892
• Citation: 90 Mich. 442,51 N.W. 531
• Court: Michigan Supreme Court
• Parties: PEOPLE v. ELLSWORTH et al.

51 N.W. 531

90 Mich. 442

PEOPLE v. ELLSWORTH et al.

Supreme Court of Michigan

March 4, 1892

Exceptions from circuit court, Newaygo county; J. H. PALMER, Judge.

John Ellsworth and John Dixon were convicted of assault with intent to do great bodily harm, and Roger Craig was convicted of assault and battery, and appeal. Affirmed.

M. W. Underwood, for appellants.

A A. Ellis, Atty. Gen., and A. F. Tibbits, Pros. Atty., for the People.

MORSE C.J.

The respondents Ellsworth and Dixon were found guilty of an assault with intent to do great bodily harm less than the crime of murder, and the respondent Craig guilty of an assault and battery, on a joint trial upon the following information, duly verified: "State of Michigan. The circuit court for the county of Newaygo. Newaygo county-ss.: A. F. Tibbits. prosecuting attorney in and for the county of Newaygo, aforesaid, for and in behalf of the people of the state of Michigan, comes into said court in the October term thereof, in the year one thousand eight hundred and ninety-one, and gives the court here to understand and be informed that heretofore, to-wit, on the fifteenth day of September, 1891, in the township of Wilcox in said county, John Ellsworth, John Dixon, and Roger Craig late of said county, with force and arms, in and upon Edward Patnode and Frank Jewell, in the peace of the people of the state of Michigan then and there being, did make an assault with intent to do great bodily harm, less than the crime of murder, and the said Edward Patnode and Frank Jewell did then and there beat, bruise, wound, and ill-treat, against the form of the statute in such case made and provided, and against the peace and dignity of the people of the state of Michigan. A. F. TIBBITS, Prosecuting Attorney." Respondents demurred to this information, which demurrer was overruled; and, upon their refusing to plead, the court directed a plea of not guilty to be entered for each of them. After the evidence for the people had been received, the respondents' counsel moved to quash the information for the following reasons: (1) Because the information charges two distinct and separate offenses in one count, and is bad for duplicity. (2) Because said information charges in one count that respondents, with force and arms, in and upon Edward Patnode and Frank Jewell, did made an assault with intent to do great bodily harm, less than the crime of murder. (3) Because said information charges a simple assault and battery, and nothing else, which is an offense triable before a justice of the peace. (4) Because a felony and misdemeanor is joined in one count. (5) Because such information charges no offense known by the laws of this state. This motion was denied, and exception taken.

The prosecutor was not required by the court to elect whether the offense charged in such information was to be confined to a charge of assault with intent to do great bodily harm, less than the crime of murder, upon either Edward Patnode or Frank Jewell. The respondents then introduced testimony, and the case was submitted to the jury under the charge of the court and verdict returned as above stated. It is alleged as error that this information charged an assault with intent to do great bodily harm, less than the crime of murder, upon two persons; and that the court should have required the prosecuting attorney to elect, confining the said assault to one person; that an assault upon two persons could not be tried under the same information and at the same time. It is contended that section 9122 a, How. St., is in derogation of the common law, in that it creates a new offense unknown to the common law. The statute reads: "Any person who shall assault another with intent to do great bodily harm, less than the crime of murder, shall be punished by imprisonment in the state-prison not more than ten years, or by fine not exceeding $800, or by both, in the discretion of the court." 2 How. St. p. 2214. It is argued that "another" means "one," and no more. Also than an assault with intent to do great bodily harm, less than the crime of murder, could not well be committed upon two persons by the same act, and, if not, the offense would be distinct and separate,...