State v. Ackles

Decision Date24 March 1894
Citation36 P. 597,8 Wash. 462
PartiesSTATE v. ACKLES.
CourtWashington Supreme Court

Appeal from superior court, Clallam county; James G. McClinton Judge.

Moses Ackles, convicted of an assault with a deadly weapon with intent to do bodily injury, appeals. Reversed.

W. R Gay and Geo. C. Hatch, for appellant.

D. W Bryan, Pros. Atty. (Chas. F. Fishback, of counsel), for the State.

ANDERS, J.

The information upon which the appellant was tried in the court below, omitting formal parts, was as follows: "Comes now D. W. Bryan, prosecuting attorney for said Clallam county state of Washington, and now informs the court, by this information, that the above-named Moses Ackles is guilty of the crime of assault with intent to commit murder, committed as follows: The said Moses Ackles did, on or about the 12th day of January, A. D. 1891, in the county of Clallam, state of Washington, unlawfully, purposely, and of his premeditated malice, and with intent to murder, assault and shoot one Benjamin Franklin with a deadly weapon, namely, a Colt's rifle, loaded with powder and leaden balls, which he, the said Moses Ackles, then and there held in his hands,-said leaden ball or balls striking the said Benjamin Franklin in the right arm,-with intent to murder the said Benjamin Franklin." To this information the defendant interposed a demurrer on two grounds: First, that the words "and of his premeditated malice" were unnecessary and prejudicial; and, second, that the information failed to charge a crime.

As to the first objection, it is only necessary to observe that even if it were conceded that the words objected to were unnecessary, and surplusage, it could not be said that the information was thereby vitiated, for useless allegations cannot destroy the legal effect of necessary averments. In order to properly charge the crime of which the defendant was accused, it was necessary to allege the doing of such acts as would have constituted murder, either in the first or second degree, if death had resulted therefrom. Even rejecting the word "premeditated," which was clearly useless, there still remains in the information sufficient allegation of fact to charge the defendant with the commission of an assault with intent to commit murder in the second degree, which is the killing of another purposely and maliciously, but without deliberation and premeditation, which latter words are used in defining "murder in the first degree." Pen. Code, § 3. Our statute provides that words defining a crime need not be strictly pursued in an information, but other words, conveying the same meaning, may be used. Code Proc. § 1243. As the difference between the meaning of the words "of his premeditated malice," and the single word "maliciously," which is used in the statute defining "murder in the second degree," is one of degree, merely, and not of substance, it follows that appellant's second objection to the information cannot be sustained, and that the demurrer was properly overruled.

Upon the trial of this cause the jury returned the following verdict: "We, the jury in the above-entitled cause, do find the defendant guilty of assault with a deadly weapon with intent to do bodily harm." It is contended on behalf of the appellant that the latter was convicted of a crime not charged in the information, and therefore unwarranted by law. On the other hand, the respondent insists that assault with a deadly weapon with intent to do bodily harm is necessarily included within the offense charged in the information, and is consequently an offense of which the jury had a right to convict, under section 1320 of the Code of Procedure. While it is true that the jury may find a defendant not guilty of the crime charged, but guilty of an offense of lesser degree, or of an offense necessarily included within that charged, it is also true that accusation must precede conviction, and that no one can legally be convicted of an offense not properly alleged. The accused, in criminal prosecutions, has a constitutional right to be apprised of the nature and cause of the accusation against him. Const. art. 1, § 22. And this can only be made known by setting forth in the indictment or information every fact constituting an element of the offense charged. This doctrine is elementary, and of universal application, and is founded on the plainest principle of justice. Tested by this rule, we think the verdict and judgment in this case were erroneous, and must be set...

To continue reading

Request your trial
32 cases
  • State v. Pry, 96599-4
    • United States
    • Washington Supreme Court
    • November 21, 2019
    ...v. Gehrke, 193 Wash.2d 1, 6, 434 P.3d 522 (2019) (lead opinion) (first and third alterations in original) (quoting State v. Ackles, 8 Wash. 462, 464-65, 36 P. 597 (1894) ). The State gives notice of charges by information, which "shall be a plain, concise and definite written statement of t......
  • State v. Condon
    • United States
    • Washington Supreme Court
    • January 8, 2015
    ...must have notice of the offense of which he or she is charged. Berlin, 133 Wash.2d at 546, 947 P.2d 700 (citing State v. Ackles, 8 Wash. 462, 464, 36 P. 597 (1894) ). If a defendant is charged with offenses in the alternative, the constitutional requirement of notice is satisfied as long as......
  • State v. Gehrke
    • United States
    • Washington Supreme Court
    • February 14, 2019
    ...... This doctrine is elementary and of universal application, and is founded on the plainest principle of justice." State v. Ackles, 8 Wash. 462, 464-65, 36 P. 597 (1894). The "accused must be informed of the charge he is to meet at trial and cannot be tried for an offense not charged." Sta......
  • State v. Powell
    • United States
    • Washington Supreme Court
    • December 17, 2009
    ...320, 704 P.2d 1189 (1985) (emphasis omitted). "[N]o one can legally be convicted of an offense not properly alleged." State v. Ackles, 8 Wash. 462, 464, 36 P. 597 (1894). ¶ 20 Importantly, "essential elements" include only those facts that must be proved beyond a reasonable doubt to convict......
  • Request a trial to view additional results
1 books & journal articles
  • The Doctrine of Lesser Included Offenses
    • United States
    • Seattle University School of Law Seattle University Law Review No. 16-01, September 1992
    • Invalid date
    ...err in inferring that the courts were not, in doing so, examining the statutory elements of the respective offenses. In State v. Ackles, 8 Wash. 462, 464, 36 P. 597, 598 (1894), the court demanded that the information state "every fact constituting an element of the offense charged." If the......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT