People v. Sweeney

• Decision Date: 14 January 1885
• Citation: 55 Mich. 586,22 N.W. 50
• Court: Michigan Supreme Court
• Parties: PEOPLE v. SWEENEY.

22 N.W. 50

55 Mich. 586

PEOPLE v. SWEENEY.

Supreme Court of Michigan

January 14, 1885

Error to Saginaw.

J.J Van Riper, for plaintiff.

Tarsney & Weadock, for defendant and appellant.

SHERWOOD, J.

The record in this case shows the defendant was arrested and brought before a magistrate, in the county of Saginaw, on a charge of assault with intent to kill and murder one Jacob Jonsen. He waived examination and was bound over to appear at the circuit court in said county, wherein he appeared on the fourth day of December 1883, and was there arraigned upon an information containing two counts: the first charging him with the crime of assault with intent to kill and murder, and the second with "an assault with intent to do great bodily harm, less than the crime of murder." To this information the defendant pleaded not guilty. On the issue thus made the cause went to trial, and on the seventh day of March, 1884, the jury rendered their verdict, finding the defendant guilty "of assault with intent to do great bodily harm." The court afterwards sentenced him to the state prison for 10 years.

No exception was taken by respondent or his counsel to proceeding to trial without any preliminary examination on the charge contained in the second count in the information. Thirty-one assignments of error are presented for our consideration. Four relate to the charge of the court, and the others to proceedings upon the introduction of evidence. The offense of which the defendant was convicted was created by statute of the last session of the legislature of this state, (Act 71 of 1883.) It is claimed that the count containing this statutory offense cannot be joined with one charging the common-law offense of assault with intent to murder. Both offenses are felonies both are punishable by imprisonment,--one not exceeding 10 years and the other for life; a fine may be added to the first. The proofs establishing the latter would necessarily be sufficient to convict of the former. The latter crime includes the former, and it was conceded by counsel for the respondent that the proofs would be the same, on the trial on both counts.

It is difficult to give a satisfactory reason why these two offenses may not be joined in the same information in different counts. Under the first count the defendant is charged with an intent to do the greatest bodily harm possible, and in the second with the intent to do bodily harm, amounting to an offense greater than a misdemeanor, and less than murder. In both cases the offenses charged are of the same character, were committed at the same time, by the same force, and only differ in the degree of injury inflicted. While only one exists at common law, both are defined by our statute, and the penalties regulated thereby. The one being statutory only, furnishes no ground in the case stated for misjoinder. 2 Hale, 173; 1 Leach, 1103; 1 Chit.Crim.Law, 253; Baker v. State, 4 Ark. 56; Com. v. Tuck, 20 Pick. 356; State v. Brady, 14 Vt. 353; State v. Cocker, 3 Har. (Del.) 554; State v. Grisham, 1 Hayw. 12; Josslyn v. Com. 6 Metc. 236; State v. Flye, 26 Me. 312; People v. Austin, 1 Parker, Crim.R. 154; U.S. v. Peterson, 1 Wood. & M. 305; Com. v. Manson, 2 Ashm. 31; McGregg v. State, 4 Blackf. 101; State v. Coleman, 5 Port. 32; Wash v. State, 14 Smedes & M. 120; People v. Baker, 3 Hill, 159; State v. Hogan, R.M. Charlt. 474; Kane v. People, 8 Wend. 203; Carlton v. Com. 5 Metc. 532; U.S. v. O'Callahan, 6 McLean, 596; Stephen v. State, 11 Ga. 225; Burk v. State, 2 Har. & J. 426. Neither does the fact that the prescribed penalties are different. King v. Darley, 4 East, 179; 1 East, P.C. 408-410; Kightley v. Birch, 2 Maule & S. 533; King v. Darley, supra, 174. Nor was the defendant prejudiced in any manner by the joinder upon the trial. By the joinder of the counts he became entitled to the greatest number of challenges allowed by law, and a greater number than he would have been had the information contained a single count for the crime of which he was convicted. Neither does the information present a case in which the people could be required to elect between the counts. When distinct offenses are charged in different counts, but are committed by the same acts, at the same time, and the same testimony must necessarily be relied upon for conviction, the prisoner cannot be confounded in making his defense, and the people ought not to be compelled to elect. People v. Costello, 1 Denio, 83; People v. Rynders, 12 Wend. 425; Kane v. People, 8 Wend. 203; State v. Smith, 8 Blackf. 489; Wash v. State, 14 Smedes & M. 120.

We think the ruling of the circuit judge was right upon this subject. It is unnecessary now to determine the extent of the injury required to bring a case within the statute under which the conviction in this case was had. It very clearly appears from the record that "great bodily harm less than murder" was committed. That the injury was committed by shooting was admitted upon the trial; the extent of the injury and the intent with which it was done being the main questions litigated before the jury. "Every sane man must be presumed to contemplate and intend the necessary, natural, and probable consequences of his own acts," (3 Greenl.Ev. �� 13, 14; Rex v. Farrington, Russ. & R. 207; Com. v. Webster, 5 Cush. 305;) but when the intent is the gist of the crime, as in this case, the presumption, though a very important circumstance in making the proof necessary upon this point to convict, is not conclusive, nor alone sufficient, and should be supplemented by other testimony to avoid a reasonable doubt.

We have examined the testimony tending to show the extent of the injury, and find nothing improper in the ruling of the court upon the objections taken upon that subject. It appears from the testimony that the defendant kept a saloon in East Saginaw not far from the one in which the shooting was done, and that a Miss Kelly occupied rooms in the upper part of the same building, and the defendant was found in these rooms when he was arrested. This woman was not sworn or examined by either party, neither was she in the room when the arrest was made, nor present when the shooting was done. But the people were allowed, against the objection of immateriality, to prove she was reported to be Sweeney's woman; that she was of ill repute and kept a house of...