State v. Maloney

• Decision Date: 08 November 1897
• Citation: 72 N.W. 927,7 N.D. 119
• Parties: STATE v. MALONEY.
• Court: North Dakota Supreme Court

7 N.D. 119

72 N.W. 927

STATE

v.MALONEY.

Supreme Court of North Dakota.

Nov. 8, 1897.

Syllabus by the Court.

1. The defendant was charged by an indictment framed under section 7115, Rev. Codes, with the offense of assault and battery with intent to kill, while armed with a deadly weapon, to wit, a knife. Held, construing section 8244, Id., that it was legally competent, under such a charge, for the jury to return a verdict of guilty of an aggravated assault, defined in section 7145, Id.

2. After being charged by the court, the jury retired for deliberation, and later returned into court, and announced that they had agreed upon a verdict, and upon the request of the court the foreman of the jury read such verdict, which verdict (omitting formal parts) is as follows: “We, the jury in the above-entitled cause, find the defendant, Daniel Maloney, guilty of assault and battery with a sharp and dangerous weapon, with intent to do bodily harm.” The court declined to receive said verdict, and it was not recorded. The court, in effect, stated to the jury that a verdict for the offense indicated by the terms of their verdict would be insufficient if it omitted to declare that the offense was committed “without justifiable cause or excuse.” Error is assigned upon this instruction, and also upon the action of the court in sending the jury back for further deliberation. Held, that both assignments of error are valid, and must be sustained. Held, further, under the circumstances of this case, that such errors did not prejudice the defendant.

3. The jury went out under said instructions, and subsequently returned into court with a verdict which was received and recorded, and upon which the judgment appealed from was entered. Error is assigned upon the last verdict upon the ground that the jury had exhausted their powers in returning their first verdict (which was valid and sufficient), and hence could not return another verdict in the case. The last verdict was identical with the first in all material features except that the words aforesaid-i. e. “without justifiable cause or excuse”-were added in the last verdict. Held, that the last verdict was valid. Held, further, upon facts stated in the opinion, that this court will not reverse a judgment for errors of mere procedure unless the error appears of record affirmatively.

Appeal from district court, Ramsey county; D. E. Morgan, Judge.

Daniel Maloney, indicted under the name of Thomas Maloney, was convicted of assault with a dangerous weapon, and appeals. Affirmed.M. H. Brennan, for appellant.

WALLIN, J.

In this action the defendant was charged by indictment with the crime of assault and battery with intent to kill, while armed with a deadly weapon, to wit, a knife. The indictment was obviously framed under the provisions of section 7115 of the Revised Codes. It was challenged by a motion in arrest of judgment. We think the indictment was sufficient in form and substance, and there can be no doubt of the jurisdiction of the trial court over the subject-matter. It appears that, after being instructed by the trial court, the jury retired for deliberation, and subsequently came into court, and stated that they had agreed upon a verdict; whereupon, upon the request of the court, the foreman of the jury read the verdict, which was as follows, omitting formal parts: “We, the jury in the above-entitled action, find the defendant, Daniel Maloney, guilty of assault and battery with a sharp and dangerous weapon, with intent to do bodily harm.” Upon hearing the verdict read, the court said to the jurors that the verdict could not be received by the court, and said verdict was never received or recorded. The court then instructed the jury as follows: “I will give you this additional instruction in writing, and no more. You ask me to tell you whether a certain portion of one of the verdicts can be left out or omitted from your verdict, and have the same received. Answering this question as to whether you can omit from one of the verdicts the words ‘without justifiable cause or excuse,’ I will say that you cannot omit those words from that verdict, and have it be a verdict of guilty of the offense of assault and battery with a sharp or dangerous weapon without justifiable cause or excuse, as the assault and battery must be without justifiable cause or excuse before the defendant can be guilty at all of the offense named. If the assault and battery were committed from a justifiable or excusable cause, the defendant would not be guilty. These several verdicts were prepared under my direction, and are in accordance with the statute in such cases made and provided, and it is for you to say which one is to be agreed to under the evidence and the law as given you.” After receiving these instructions, the jury retired for further deliberation, and later returned into court with the following verdict, which was received and recorded, omitting formal parts: “We, the jury in the above-entitled cause, find the defendant, Daniel Maloney, guilty of assault with a sharp or dangerous weapon with intent to do bodily harm, without justifiable cause.” Upon this verdict the judgment appealed from was entered.

The errors assigned in this court relate, first, to the order overruling the motion in arrest of judgment. This we have already disposed of, and in fact this assignment seems to have been abandoned by counsel, not having been discussed in his brief. Second. Error is assigned upon a certain instruction to the jury relating to the doctrine of reasonable doubt. We think the assignment is wholly untenable (when the entire charge is taken into consideration), and shall, therefore, overrule the point without further discussion. Third. Error is assigned upon the ground that counsel for the defendant was not present in court when either of the verdicts in question was brought into court by the jury. The record fails to disclose whether this statement is true in fact or not. The record on the point being silent, the point is overruled on the ground that the error, if any, does not affirmatively appear upon the record. See State v. Haynes (decided at this term) 72 N. W. 923.

The most important questions in the case arise upon errors assigned upon the verdicts, and the instructions given to the jury when the jury came into court with their first verdict. Counsel claims that the court erred in not receiving the first verdict, and erred in stating the grounds and reasons to the jury upon which the court declined to receive such verdict. Counsel further contends that the second verdict was improperly and unlawfully found and returned into court, for the reason, as counsel claims, that a valid verdict upon the issues had previously been returned into court by the jury, and that the original verdict had exhausted the functions of the jury in the case; or, in other words, that the verdict last returned is absolutely void. Hence, as counsel contends, the judgment, which is based wholly upon the second verdict, cannot be lawful, and should therefore be reversed.

It will aid in the solution of the questions presented to consider, first, certain statutes bearing upon the subject-matter. As we have stated, the indictment charges an offense defined by section 7115 of the Revised Codes. This section declares that any person “who commits an assault and battery upon another by means of any deadly weapon, * * * with intent to kill any other person is punishable,” etc. This statute defines an aggravated assault and battery with a deadly weapon, committed with a specific felonious intent, viz. an intent to kill. On a trial for this offense a simple verdict of guilty would legally declare that the accused was guilty of the aggravated assault and battery charged; i. e. an assault and battery with intent to kill. But it frequently happens that in trials based upon such a statute the evidence fails to show that the accused is guilty of the aggravated assault, and yet does show that he is guilty of an assault and battery or of a simple assault. To meet such a contingency, a statute has been enacted, voicing a rule existing at common law, declaring: “The jury may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged in the information or indictment,” etc. Rev. Codes, § 8244. Under this statute the defendant could lawfully have been found guilty of the offense of assault and battery, because that offense is necessarily involved in the commission of the aggravated offense charged in the indictment, and defined by section 7115. But the inclusive principle declared by section 8244, supra, is still more comprehensive, and will embrace an offense not included within the particular statute under which an information or indictment is framed. It will permit a jury to find a defendant guilty of any offense necessarily included in the commission of the offense charged. Applying this test, we discover that the aggravated assault and subordinate offenses mentioned in section 7145, Id., are within this principle of inclusion. It is manifest that an assault, or assault and battery, while armed with a sharp or dangerous weapon, with intent to do bodily harm, is an offense necessarily included in the offense of assault and battery with intent to kill, while armed with a deadly weapon. These explanations will show that in the case under consideration it was legally possible for the jury to return any one of five verdicts, viz. a verdict of not guilty, a verdict of guilty of assault, or guilty of assault and battery, or guilty of the aggravated assault set out in section 7145, or guilty of the...