Smith v. State

• Decision Date: 22 September 1904
• Citation: 72 Neb. 345,100 N.W. 806
• Parties: SMITH ET AL. v. STATE.
• Court: Nebraska Supreme Court

72 Neb. 345

100 N.W. 806

SMITH ET AL.

v.STATE.

Supreme Court of Nebraska.

Sept. 22, 1904.

Syllabus by the Court.

1. In charging the commission of an offense in an information, it is not necessary that the exact words of the statute be used, provided the words employed are the equivalents in meaning of those contained in the statute. Whitman v. State, 22 N. W. 459, 17 Neb. 224.

2. The court will give the words used in the information their ordinary and commonly accepted meaning, and when viewed in this light, if the words employed mean the same thing as those found in the language of the statute denouncing the offense, the information will be upheld.

3. Whether allegations in an information charging an assault and an attempt to commit a robbery include the essential element of a felonious intent to rob, quære.

4. The allegations of the information set out in the opinion held sufficient to charge an assault with intent to commit a robbery, and to support a judgment of conviction of such an offense.

Error to District Court, Douglas County; Baxter, Judge.

John D. Smith and James Gaughan were convicted of an assault with intent to rob, and bring error. Affirmed.Martin Langdon and Dan J. Riley, for plaintiffs in error.

F. N. Prout, Atty. Gen., and Norris Brown, Dep. Atty. Gen., for the State.

HOLCOMB, C. J.

Plaintiffs in error, defendants in the court below, were informed against and convicted of the offense of an assault with the intent to commit a robbery. The sufficiency of the information to support a judgment of conviction is challenged on the ground that the intent with which the assault was committed is not sufficiently and specifically charged in the information. The charging portion of the information is: “That on the 22d day of September in the year of our Lord nineteen hundred and three, John D. Smith and James Gaughan, late of the county of Douglas aforesaid, in the county of Douglas and state of Nebraska aforesaid, then and there being, then and there in and upon one Henry Herman unlawfully, feloniously, forcibly, and by violence did make an assault, and then and there with menaces, forcibly and with violence, feloniously did attempt to take from the person of the said Henry Herman, and against his will, thirty-five cents (35/100) in money, of the value of thirty-five cents (35/100), the personal property of the said Henry Herman, with the intent of them, the said John D. Smith and James Gaughan, then and there feloniously, forcibly, and violently from the person of him, the said Henry Herman, against his will to steal, take, and carry away said property, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the state of Nebraska.” It is argued that the gist of the offense sought to be charged consists in the intent with which the assault was committed; that such intent must be distinctly alleged and proved, and that there is no intent whatever alleged as to the assault charged in the information in the case at bar. It is urged that the latter clause, wherein it is charged after the alleged attempt at robbery that it was with the intent of the defendants “then and there feloniously, forcibly, and violently from the person of him, the said Henry Herman, against his will to steal, take, and carry away said property,” has no connection with the alleged assault, and that such intent as therein alleged cannot refer back and show the intent with which the alleged assault was committed. It is the well-settled doctrine in this state that in charging the commission of an offense in an indictment or information it is not necessary that the exact words of the statute be used, provided the words employed are the equivalents in meaning of those contained in the statute. Whitman v. State, 17 Neb. 224, 22 N. W. 459;Kirk v. Bowling, 20 Neb. 263, 29 N. W. 928;Hodgkins v. State, 36 Neb. 161, 54 N. W. 86;Wagner v. State, 43 Neb. 5, 61 N. W. 85;Bartley v. State, 53 Neb. 328, 73 N. W. 744;Carrall v. State, 53 Neb. 439, 73 N. W. 939. Section 14 of the Criminal Code (Cobbey's Ann. St. 1903, § 2063) provides that if any person shall assault another with intent to commit a robbery, every person so offending shall be imprisoned, etc. It is clear that the gravamen of the offense sought to be charged in the information in the case at bar is the intent of the accused to commit a robbery; that this intent is the very essence of the crime, and must be charged explicitly. The allegation of intent cannot be aided by intendments. O'Connor v. State, 46 Neb. 165, 64 N. W. 719;State v. Hughes, 38 Neb. 369, 56 N. W 982;Smith v. State, 21 Neb. 552, 32 N. W. 594. It is, however, the duty of the court to give the words used in the information...