People v. Troy

• Decision Date: 26 July 1893
• Citation: 56 N.W. 102,96 Mich. 530
• Court: Michigan Supreme Court
• Parties: PEOPLE v. TROY.

56 N.W. 102

96 Mich. 530

PEOPLE v. TROY.

Supreme Court of Michigan

July 26, 1893

Exceptions from superior court of Grand Rapids; Edwin A. Burlingame Judge.

Edward Troy was convicted of an assault with intent to do great bodily harm, less than the crime of murder, and excepts. Reversed.

Maynard & Chase, for appellant.

A. A Ellis, Atty. Gen., and Alfred Wolcott, Pros. Atty., for the People.

LONG J.

Respondent was informed against, and convicted, under section 9122a, 2 How. St., which 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 eight hundred dollars, or by both, in the discretion of the court." The case comes to this court on exceptions before sentence. It appeared on the trial that on the night of May 23, 1892, two young men, by name of Flanders and Ottobien, were engaged in a street fight. One of the parties called for help, when a police officer ran to the place, and sought to arrest the two. Ottobien broke away from the officer, and, while the latter was engaged in securing Flanders, he was struck on the head by a stone thrown by a person whom the officer afterwards claimed to recognize as the respondent. Flanders was complained against for the offense of resisting an officer, and the respondent complained against, and convicted, under the statute above quoted. Flanders' trial came on first in the recorder's court of Grand Rapids, and he was found guilty by the jury. At the same term, respondent was brought to trial, and seven of the jurors who sat in Flanders' case were permitted, under objection, to sit in the case against respondent. It is claimed by counsel for respondent that the verdict should be set aside for the reasons (1) that the act under which the conviction was had is unconstitutional and void; (2) that the court erred in permitting the jurors who found Flanders guilty to sit in the case against respondent (3) that the court erred in its charge to the jury on the question of alibi, claimed as a defense in the case.

This statute was passed in 1883, (Act No. 71, Pub. Acts 1883.) Questions relative to convictions thereunder have been before this court in People v. Sweeney, 55 Mich. 586, 22 N.W. 50; People v. Ross, 66 Mich. 94, 33 N.W. 30; People v. Sebring, 66 Mich. 705, 33 N.W. 808; People v. Lennon, 71 Mich. 298, 38 N.W. 871; Turner v. Circuit Judge, 88 Mich. 361, 50 N.W. 310; People v. Ellsworth, 90 Mich. 442, 51 N.W. 531; People v. Miller, 91 Mich. 639, 52 N.W. 65. In People v. Sweeney, supra, the respondent was charged in one count with the crime of assault with intent to kill and murder, and, in the second count, with an assault with intent to do great bodily harm, less than the crime of murder. The claim was made in this court that the count for the statutory offense of an assault with intent to do great bodily harm less than the crime of murder, could not be joined with a count for the common-law offense of an assault with intent to kill and murder. Mr. Justice Sherwood, writing for the court, overruled this objection, and, in speaking of this statutory offense, said: "It is unnecessary 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." The respondent was convicted of this statutory offense, but the case was reversed upon the exclusion of evidence by the trial court. In People v. Ross, supra, Mr. Justice Campbell wrote for reversal upon the ground that the proofs offered showed no more than simple assault. The prisoner was discharged. In People v. Sebring it appeared that, when the cause was called for trial, respondent's counsel moved to quash the information upon the ground that the complaining witness was the respondent's wife. This was the only error relied upon, and Mr. Justice Sherwood said: "It would be a strange rule of law, indeed, which would not allow a wife, when assaulted and beaten until her life was endangered by a cruel and malicious husband, to resort to the courts, and make her complaint, and secure his arrest." The conviction was affirmed. In People v. Lennon the respondent was charged in two counts, as in the case of People v. Sweeney, but convicted upon the count for assault with intent to do great bodily harm. The defense was that the respondent was acting in self-defense. Mr. Justice Morse, writing for the court, said that the proof did not justify a conviction for any greater offense than assault and battery. The prisoner was discharged. In Turner v. Circuit Judge it was held that the respondent could not be convicted of assault and battery under an information charging him with the statutory offense of assault to do great bodily harm, less than the crime of murder, but not charging a battery, nor could the information be amended after the verdict, and before judgment, so as to include the latter charge. In People v. Ellsworth it was held that one or more respondents might be informed against for an assault upon two persons with intent to do great bodily harm, less than the crime of murder, if the assault complained of was made by the same act, and that in Turner v. Circuit Judge it was not intended to hold that under such a charge a person could not be convicted of assault and battery, if such lesser offense were properly charged in the information. The conviction was sustained, Mr. Justice Morse writing for the court. In People v. Miller it was held that the intent to do great bodily harm, less than the crime of murder, under certain circumstances, might be inferred from the act itself, and that the facts appearing on the trial showed that the respondent intended to do great bodily harm. The conviction was affirmed. It was said by Mr. Justice Morse in that case: "The assignments of error are mostly based on the main proposition, that, under the evidence on the part of the people, there was no greater crime than assault and battery, of which the respondent could be convicted." It is contended by the attorney general that each of the foregoing cases, of necessity, involved the constitutionality of the act in question, and especially in the case of People v. Ellsworth, supra, that question was raised. It appeared in that case that the respondent's counsel moved to quash the information, in the court below, on the ground...