Rice v. People

• Court: Supreme Court of Michigan
• Writing for the Court: Cooley, J.
• Citation: 15 Mich. 9
• Parties: Charles Rice and another v. The People
• Decision Date: 30 October 1866

15 Mich. 9

Charles Rice and another
v.
The People

Supreme Court of Michigan

October 30, 1866

Heard October 25, 1866 [15 Mich. 10] [Syllabus Material] [15 Mich. 11] [Syllabus Material] [15 Mich. 12] [Syllabus Material] [15 Mich. 13]

Error to Oakland circuit.

The information in this case charged plaintiffs in error with having assaulted, with intent to kill and murder, one Charles Parsons. The information was sworn to before the clerk, who signed his name as follows: "J. D. Bateman, clerk."

A plea of not guilty was entered. The jury brought in a verdict of guilty, and sentence was passed.

The following errors were assigned:

"First. That the information is insufficient in this, that it does not charge that said Charles Rice and Harlow Woodard, aforesaid, willfully, and with malice aforethought, intended to kill and murder Charles Parsons, the person upon whom the assault is charged to have been by them, the said Rice and Woodard, committed.

"Second. That the said information does not charge them, the said Charles Rice and Harlow Woodard, with the commission of any offense for the commission of which they could or should be, by the laws of the state of Michigan, sentenced to imprisonment in the state prison; the said information in law being an information for assault and battery only.

"Third. That the said information is insufficient in this, to wit: The verification thereto is not authenticated with the name of the clerk, the person by whom the oath purports to have been administered."

Judgment of the court affirmed.

O. F. Wisner and W. B. Jackson, for plaintiffs in error:

1. The statute under which plaintiffs in error were convicted is: "If any person shall assault another with intent to commit the crime of murder, every such offender shall be punished by imprisonment in the state prison for life, or any number of years:" 2 Comp. L., § 5724.

Indictments (informations) for the "crime of murder," must charge that "defendant did willfully, and of his malice aforethought, kill and murder:" 2 Comp., L., § 6047.

We submit that, under the statutes, an information for assault with intent to commit the crime of murder must contain the necessary averments to show that, had death ensued, the killing would have been murder.

Malice aforethought is an essential ingredient of the offense of assault with intent to commit murder--hence necessary to be averred in the information: 2 Mich. 212.

In prosecutions for assault with intent to murder, the actual intent to kill must be found, and that under circumstances which would make the killing murder: Ibid.

Now, if this be so, it was necessary to prove that plaintiffs in error willfully, and of their malice aforethought, intended to kill and murder Charles Parsons; and, if necessary to prove it, it must be necessary to aver it. An indictment must aver everything necessary to constitute the offense: 5 Denio 76; 13 Wend. 311; 31 Me. 401; 5 Ohio State R., 280; 11 Humph. 167.

The information in this case is manifestly insufficient.

In the case in Indiana, this very question arose upon an indictment precisely like the information in this case, and the court held it properly quashed. See also, 3 Eng. (Ark.), 400; 19 Miss. (4 Bennett), 212; Am. Cr. Law, 399; 1 Archb. Cr. Law, 301; 3 Eng. 400; 1 Scam. 285.

In every precedent to be found of indictments for assaults with intent to commit murder, the words "willfully," and of "malice aforethought" are contained: 2 Archb. Cr. Law, 1, 19; 3 Chit. Cr. Law, 828; Wharton's Prec., 119, 125, 126, 127.

2. The information is simply one for assault and battery: 4 Park. Cr. R., 61; Id., 187.

3. The information is insufficient, for the reason that the verification thereto is not authenticated with the name of the clerk, the person by whom the oath purports to have been administered. "J. D. Bateman" is not the clerk.

A. Williams, attorney-general, for the people:

1. The judgment cannot now be set aside or reversed for either of said errors assigned upon the information.

a. The punishment of said offense being declared by statute, and the information describing it in the language of the statute, it is, after verdict, sufficient: 2 Comp. L., § 6059; 1 Doug. 42; Archb. Cr. Pl. and Ev., 51-2-3-4; 6 McLean R., 56; Laws 1849, p. 391-2.

b. The respondents' objections relate to the form, and not to the substance, of the information: 5 Wend. 10, 19, 20; Id., 425; 3 Denio 212, 213; 8 Barb. Sup. Ct., 548, 550, 551; 1 Archb. Cr. Pl., p. 118, note 2. See Form, Bouv. Law Dic., 2 Seld. 50.

c. The objections being to the form of the information, apparent upon its face, it must have been taken by demurrer, or motion to quash the same before the jury were sworn, and not afterwards: Comp. L., § 6055.

Therefore, when the jury were sworn the objection aforesaid, not before having been made by the respondents, as required by the statutes, were then waived forever: Comp. L., § 6055; 1 Chit. Cr. L., 423 to 437; 1 Chit. Pl., 440, 441; 10 Mich. 372.

2. Nor could the information, at any stage of the proceedings, or in any way, in the court below, have been quashed or deemed invalid, or the trial, judgment, or other proceedings thereon be affected by reason of the omission of the following words, to wit: "Willfully and with malice aforethought;" because,

a. They are "words of similar import" with the following, to wit: "Feloniously" and "with force and arms:" Comp. L., § 6043; 9 Mot. 268, 270; 5 Whart. 427. See Webster's Dic.; Bouv. Law Dic.; Burrell's Law Dic.

b. And, also, because they are, at most, "defects or imperfection in matters of form, which" do "not tend to the prejudice of the defendants." Not having been, as they could not be, by reason of their absence, surprised, misled, left in doubt,...