People v. Sims, 193.

• Decision Date: 02 March 1932
• Docket Number: No. 193.,193.
• Citation: 241 N.W. 247,257 Mich. 478
• Parties: PEOPLE v. SIMS.
• Court: Michigan Supreme Court

257 Mich. 478

241 N.W. 247

PEOPLE

v.SIMS.

No. 193.

Supreme Court of Michigan.

March 2, 1932.

Appeal from Circuit Court, Iosco County; Herman Dehnke, Judge.

William Sims was convicted of assault with intent to commit murder, and he appeals.

Affirmed.

Argued before the Entire Bench.Thomas J. Drouillard and Louis W. McClear, both of Detroit, for appellant.

Paul W. Voorhies, Atty. Gen., and John A. Stewart, Pros. Atty., of Tawas City, for the People.

FEAD, J.

Defendant was convicted of assault with intent to commit the crime of murder.

He contends that venue was not proved at the trial. The point was not raised before the case was submitted to the jury, and therefore does not present reversible error. C. L. 1929, § 17259, subd. 3; People v. Thompson, 255 Mich. 252, 238 N. W. 178.

The information charged the offense as ‘assault with intent to kill.’ It was first challenged after the jury was sworn, and the court permitted an amendment to charge ‘assault with intent to kill and murder.’

This court has construed a verdict of guilty of assault with intent to kill as covering no crime except assault, because there is no offense known to the law of this state as assault with intent to kill. Wilson v. People, 24 Mich. 410;Wright v. People, 33 Mich. 300;People v. Lilley, 43 Mich. 521, 5 N. W. 982. The reasoning was that, as an unlawful homicide even with intent to kill may be manslaughter, the jury did not find the statutory requisite, intent to murder.

A different question confronts us, which is governed by the Code of Criminal Procedure of 1927, adopted to eliminate some of the technicalities which had surrounded the practice. The defendant may not lie in wait for error as fully as he had been permitted to do. The people are relieved of some of the former burdens of meticulous and technical elaboration and accuracy of charge and prosecution. Concise and direct statement of the offense is permitted to be substituted for the niceties of involved pleading. Short forms of charges are set out in the statute. C. L. 1929, § 17258. Some allegations which before had been vital are declared unnecessary or amendable. An indictment or information shall contain: ‘1. The nature of the offense stated in language which will fairly apprise the accused and the court of the offense charged.’ C. L. 1929, § 17259.

And in section 17290 it is provided: ‘No indictment shall be quashed, set aside or dismissed or motion to quash be sustained or any motion for delay of sentence for the purpose of review be granted, nor shall any conviction be set aside or reversed on account of any defect in form or substance of the indictment, unless the objection to such indictment, specifically stating the defect claimed, be made prior to the commencement of the trial or at such time thereafter as the court shall in its discretion permit. The court may at any time before, during or after the trial amend the indictment in respect to any defect, imperfection or omission in form or substance or of any variance with the evidence. If any amendment be made to the substance of the indictment or to cure a variance between the indictment and the proof, the accused shall on his motion be entitled to a discharge of the jury, if a jury has been impaneled and to a reasonable continuance of the cause unless it shall clearly appear from the whole proceedings that he has not been misled or prejudiced by the defect or variance in respect to which the amendment is made or that his rights will be fully protected by proceeding with the trial or by a postponement thereof to a later day with the same or another jury. In case a jury shall be discharged from further consideration of a case under this section, the...