State v. Climie

• Decision Date: 28 April 1903
• Citation: State v. Climie, 12 N.D. 33, 94 N.W. 574 (N.D. 1903)
• Court: North Dakota Supreme Court

94 N.W. 574

12 N.D. 33

STATE OF NORTH DAKOTA v. BENJAMIN K. CLIMIE

Supreme Court of North Dakota

April 28, 1903

Appeal from District Court, Griggs County; Glaspell, J.

Benjamin K. Climie was convicted of assault and battery, and appeals.

Affirmed.

Lee Combs, for appellant.

The crime of assault and battery is no part of the offense of assault with a dangerous weapon; the court erred in instructing the jury that it could return a verdict of assault and battery; it further erred in denying defendant's motion to arrest the judgment, and motion for a new trial, and to set aside the verdict. The court also erred in overruling the demurrer to the information. Such errors of the court are based upon the claim made by the defendant, that the information states two separate offenses.

The offense alleged is assault with a dangerous weapon, and without justifiable or excusable cause, with intent to do bodily harm. The pleader then follows with an allegation of facts that tend to show the commission of an assault and battery with a dangerous weapon, which invalidates the information, as incorporating two separate and distinct offenses, contrary to law. State v. Smith, 2 N.D 515, 52 N.W. 320; State v. Marcks, 3 N.D. 532, 58 N.W. 25; State v. Garvey, 11 Minn. 154.

Benjamin Tufte, state's attorney, for respondent.

In the case of State v. Marcks, 3 N.D. 532, 58 N.W. 25, the information was drawn under section 6510 Comp. Laws of 1887. There was then no such offense as an aggravated assault and battery. The court simply held, inasmuch as a battery is not included in an assault, an information alleging an aggravated assault and battery would be double and subject to a demurrer. The crime of simple assault and battery is necessarily included in the charge of aggravated assault and battery, defined in section 7145. State v. Maloney, 7 N.D. 119, 72 N.W. 927. An indictment for assault, or assault and battery with intent to murder must set out the assault, or assault and battery with such accuracy as is ordinarily employed in setting out these charges. Enc. Pl. & Pr. Vol. 8, page 851; Miller v. State, 53 Miss. 403; Williams v. State, 42 Miss. 328.

OPINION

COCHRANE, J.

The accused was informed against by the state's attorney of Griggs county for an assault and battery with a dangerous weapon, with intent to do bodily harm, and without justifiable or excusable cause, as defined in section 7145 Rev. Codes. The information, omitting the title commencement, and concluding part, reads as follows "Benjamin Tufte, state's attorney in and for said county of Griggs and state of North Dakota, in the name and by the authority of the state of North Dakota, informs this court that heretofore, to wit, on the twelfth day of June, in the year of our Lord one thousand nine hundred and two, at the county of Griggs, in the state of North Dakota, one Benjamin K. Climie, late of the county of Griggs and state aforesaid, did commit the crime of assault and battery, with a dangerous weapon, in the manner following, to wit: That at said time and place the said Benjamin K. Climie, without justifiable or excusable cause, armed with a dangerous weapon, and with intent to do bodily harm in and upon the person of one George H. Lawrence, then and there being, did willfully, unlawfully and feloniously commit an assault, on him, the said George H. Lawrence, the said Benjamin K. Climie, then and there armed with a dangerous weapon, and without justifiable or excusable cause, willfully, unlawfully, and feloniously, and with said dangerous weapon, and with intent to do bodily harm to said George H. Lawrence, did strike and ill treat and wound in and about the head." The statute upon which this information was drawn reads: "Every person who, with intent to do bodily harm and without justifiable or excusable cause, commits any assault or assault and battery upon the person of another, with any sharp or dangerous weapon, or who without such cause shoots or attempts to shoot at another, with any kind of firearm or air gun or other means whatever, with intent to injure any person, although without intent to kill such person or to commit any felony, is punishable by imprisonment in the penitentiary not less than one and not exceeding five years, or by imprisonment in a county jail not exceeding one year." Section 7145, Rev. Codes.

Appellant assails this information, as duplicitous, and claims to have saved his right to insist upon this objection on appeal by the interposition in proper time of a demurrer, specifying as grounds therefor that more than one offense is charged in the information. Counsel for the state seek, by a preliminary motion, to eliminate from the record in this case the demurrer to the information, because it was not reduced to writing and signed by defendant's counsel and filed with the clerk before trial. Counsel for appellant insists that his objections to the information were dictated to the stenographer before pleading and in open court; that permission was given him to file his formal demurrer later, as of the date when his objections were in fact made.

We will, for the purposes of this case, assume, without deciding the motion, that the demurrer, as required by section 8092, Rev. Codes, was filed in proper time. Unless the demurrer was so filed, distinctly specifying duplicity as one ground of objection, the assignment that the information is duplicitous could not be considered on this appeal, as the point is waived if not taken by demurrer. Section 8099, Rev. Codes.

Appellant insists that the information charges a felonious assault, and also an assault and battery with a dangerous weapon, with intent to do bodily harm, and is therefore duplicitous. An assault is necessarily included as a constituent element in every assault and battery, and of assault and battery with a dangerous weapon, with intent to do bodily harm. While an assault is an offense, an assault followed by a battery is also a single offense. There cannot be a battery without an assault. At common law, an assault and battery committed at the same...