State v. Marcks
| Decision Date | 19 February 1894 |
| Citation | 58 N.W. 25,3 N.D. 532 |
| Court | North Dakota Supreme Court |
Error to District Court, McIntosh County; Lauder, J.
Louis G. Marcks and Joseph Miller were convicted of assault and battery, and bring error.
Reversed.
Judgment set aside, and case remanded.
Gaffy & Gunderson and Charles Mitschrick, for plaintiffs in error.
The information charges "with intent to injure." The express language of the statute should have been followed. State v. Clark, 45 N.W. 910; State v Harrison, 45 N.W. 777; People v. Keefer, 18 Cal. 636; People v. Jacobs, 29 Cal. 579.
The information attempts to charge two separate and distinct offenses, the lesser not being included in the greater. Turner v. Judge, 50 N.W. 310; Moore v Peo., 26 Ill.App. 137; Sweeden v. State, 19 Ark. 205; State v. Smith, 52 N.W. 320.
W. H Standish, Att'y Gen'l. and A. W. Clyde, States Attorney, for the state.
The plaintiffs in error were arraigned and tried upon an information filed against them by the state's attorney of McIntosh County, and were convicted of assault and battery, and sentenced to pay a fine of $ 75 each, and be imprisoned in the county jail for a period of 10 days. Motions in arrest of judgment and for a new trial were made and overruled, and a bill embracing exceptions was settled. Such portions of the information as are deemed important in the decision of the questions raised on the record are given below: "Comes now A. W. Clyde, state's attorney, within and for said county and state, and herewith informs said court and says that a public offense, namely, the crime of assault with intent to do bodily injury, has been committed by said defendants in the manner following, to-wit:" The information then sets out that the defendants were, at the time and place stated, armed with dangerous weapons, which are described, and that being so armed, the defendants "did willfully, unlawfully, feloniously, and without justifiable or excusable cause, assault, and with said dangerous weapons then and there, and with great force and violence, strike, beat, cut, bruise, and dangerously wound and injure one Andreas Gunther, with the intent on the part of them, the said Louis G. Marcks and Joseph Miller, and each of them, then and there, unto the said Andreas Gunther, to do bodily harm and injury; contrary to the statute in such case made and provided, and against the peace and dignity of the State of North Dakota." To the information plaintiffs in error filed separate demurrers, and alleged the following causes of demurrer: "First, that said information does not substantially conform to the requirements of the statute in that the offense is not stated; second, that more than one offense is attempted to be charged in said information; third, that the facts stated do not constitute a public offense." The demurrers were overruled, and defendants excepted to the ruling; whereupon the parties pleaded not guilty, and were tried before a jury. At the close of the testimony, the court instructed the jury as follows: "The jury are instructed that if you fail to find the defendants, beyond a reasonable doubt, guilty of the crime alleged in the information, to-wit, assault with a dangerous weapon with intent to do bodily harm, then and in that case you may, if you find beyond a reasonable doubt, that defendants are guilty of the crime of assault and battery, render a verdict against them for the crime of assault and battery." An exception was saved to the above instruction to the jury. The following is the verdict: "We, the jury, find the defendants guilty of the crime of assault and battery,"--to which verdict the defendants excepted. Among other errors assigned in this court are, first, that the court erred in overruling the demurrers; second, erred in giving said instructions to the jury; third, erred in overruling defendants' motions in arrest of judgment; fourth, erred in denying defendants' motion for a new trial.
The information is obviously framed to charge the defendants with committing the statutory felony defined in the first part of § 309, Pen. Code, § 6510, Comp. Laws.) This particular offense was not, however, named nor correctly described in general terms in the formal accusation which precedes the stating or charging part of the information. In the preliminary accusation the pleader has used certain language which indicates a purpose to frame the information under said section, but the language falls short, in that it omits to state that the assault was made with dangerous weapons, and thereby only a simple assault is stated. Such an error ought to be avoided, as the introduction is important, although not essential. The error is not one of substance.
The information is in one count, and an examination will show that the language employed in its stating or charging part is a good deal involved, and far from being lucid as a statement of the offense sought to be charged. But, in our opinion when the language is taken all together and fairly construed, it will be found to embrace the essentials of the statutory offense of an assault with a dangerous weapon, made without justifiable or excusable cause, and with intent to do bodily harm. The only difficulty in reaching this conclusion arises with reference to the words used in charging the intent with which the assault was made and the person upon whom it was made. Such averments are, of course, vital in charging the statutory offense defined in § 6510, and it must be confessed that the information contains no independent allegations which charge the defendants with assaulting Andreas Gunther with the felonious...
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