State v. Butler
| Decision Date | 20 November 1913 |
| Citation | 144 N.W. 238,26 N.D. 231 |
| Court | North Dakota Supreme Court |
Appeal from an order of the County Court of Ward County, sustaining a demurrer to a criminal information, Hon. William Murray, J.
Reversed and remanded.
R. A Nestos, State's Attorney, Dorr H. Carroll, Assistant State's Attorney, for appellant.
The information charges but one, distinct, specific offense,--that of prize fighting,--and is not duplicitous. Seville v. State, 49 Ohio St. 117, 15 L.R.A. 516, 30 N.E. 621; Rev. Codes 1905, § 9089; Rex v. Hargrave 5 Car. & P. 170; Com. v. Barrett, 108 Mass. 302; Com. v Welsh, 7 Gray, 324.
An information is not open to the objection of duplicity where the charge is the doing, and having caused to be done, the acts which constitute the offense. 22 Cyc. 386; People v Martin, 77 A.D. 396, 79 N.Y.S. 340; Rasnick v. Com. 2 Va. Cas. 356; People v. Gusti, 113 Cal. 177, 45 P. 263; Peacock Distilling Co. v. Com. 25 Ky. L. Rep. 1778, 78 S.W. 893.
Where assault is involved in the commission of a crime, both the assault and the completed crime may be charged. State v. Farley, 14 Ind. 23; 21 Cyc. 676; Com. v. Carson, 166 Pa. 179, 30 A. 985; State v. Ely, 35 La.Ann. 895; State v. Ryan, 15 Ore. 572, 16 P. 417; State v. Phipps, 95 Iowa 487, 64 N.W. 410.
An information may charge burglary, or the breaking and entering a building, and also the larceny of goods therefrom. State v. Hayden, 45 Iowa 11; State v. Shaffer, 59 Iowa 290, 13 N.W. 306, 4 Am. Crim. Rep. 83.
No appearance for respondents.
The information in this case, omitting names of witnesses indorsed, signature of assistant state's attorney, and the verification, reads as follows:
State of North Dakota County of Ward ss. In Court.
State of North Dakota vs. William Butler and William Kimball, Defendants.
Dorr Carroll, assistant state's attorney in and for the county of Ward, in the state of North Dakota, as informant here in open court, in the name and by the authority of the state of North Dakota, gives this court to understand and be informed:
That heretofore, to wit: On the 21st day of February, in the year of our Lord one thousand nine hundred and thirteen, at the county of Ward, in said State of North Dakota, William Butler and William Kimball, late of said county of Ward, and state aforesaid, did commit the crime of engaging in ring fight and contention, committed as follows, to wit:
That at said time and place the said William Butler and William Kimball did wilfully, wrongfully, and unlawfully engage in certain unlawful premeditated fight and contention with each other in a ring, wherein the said William Butler and William Kimball did then and there fight and contend with each other by striking and attempting to strike, and beating and attempting to beat each other.
This contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of North Dakota.
Dated at Minot, N. D., this 8th day of April, A. D. 1913.
On the back the information was indorsed, "In county court, county of Ward," with the names of the parties, the offense, and the certificate of filing in the county court of Ward county, during a term of said court by the order of the court.
To this information, the defendants interposed a demurrer, stating in the caption that it was in the county court of Ward county, and alleging as the grounds of the demurrer, among others, that the same is not entitled in a court having jurisdiction of the defendants, or the subject-matter of the action; that said information is duplicitous, and states more than one offense, and does not sufficiently apprise said defendants of the crime or public offense sought to be charged, and contains no plain statement of facts apprising said defendants of the nature of the offense sought to be charged, and in such manner as to enable said defendants to prepare a defense thereto. After argument the court sustained the demurrer, on what grounds we are not advised. The state's attorney then moved to amend the information by the insertion of the word "county" in the venue, between the words "in" and "court," so that it would read, "State of North Dakota, county of Ward, in county court." This motion was denied, and the court dismissed the action. An exception was allowed to the state on the ruling of the court. The case is before us on an appeal by the state, and the two errors assigned which must be considered are that the court erred in sustaining the demurrer to the information, and that the court erred in denying the defendant's motion to amend the information by inserting the word "county" in the venue, so that it might read, "State of North Dakota, county of Ward, in county court."
1. Does the information charge more than one offense? The information was drawn under § 9089, Rev. Codes 1905, which reads "Every person who engages in instigates, encourages, or promotes any ring or prize fight, or any other premeditated fight or contention, whether as principal, aid, second, umpire, surgeon, or otherwise, although no death or personal injury ensues, is guilty of a misdemeanor." It will be observed that the information is drawn in the language of the statute quoted, in so far as it is applicable to the principals in a ring fight. To it is added the allegation that they "did, then and there, fight and contend with each other, by striking and attempting to strike, and beating and attempting to beat." The respondents did not appear in this court on the hearing, and have filed no briefs. We gather from the brief of the state that the contention was that the allegation last quoted described a different offense from the one quoted in the language of the statute. We do not so construe this information. The last quotation is simply a description of the acts claimed to have been done by the defendants in engaging in a ring fight and contention. In many cases it is sufficient to allege the commission of the offense in the language of the statute, but this rule has its exceptions. We need not determine whether the charging of the commission of this offense comes within the rule or the exceptions. It is clear that the latter part of the information contains only statements supporting the more general part, and that they are in complete harmony therewith. It was drawn in accordance with the holding of the Mississippi court in ...
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