State v. Mattison

• Decision Date: 19 October 1904
• Citation: 100 N.W. 1091,13 N.D. 391
• Parties: STATE v. MATTISON et al.
• Court: North Dakota Supreme Court

13 N.D. 391

100 N.W. 1091

STATE

v.MATTISON et al.

Supreme Court of North Dakota.

Oct. 19, 1904.

Syllabus by the Court.

1. Where the defendant in a criminal case is accused of shooting or attempting to shoot with intent to kill, or of shooting or attempting to shoot with intent to do bodily harm (Rev. Codes 1899, §§ 7115, 7145), a verdict for assault with a deadly weapon with intent to do bodily harm will not warrant sentence for more than simple assault.

2. An information which purports to charge a single offense, but in stating the facts and circumstances alleged to constitute such crime unnecessarily alleges matters of aggravation, which sufficiently describe one or more other crimes not necessarily included in the one offense intended to be charged, is bad for duplicity.

3. Maiming is not an offense included in the crime of shooting with intent to kill.

4. Where an information definitely purports to charge a given offense, but is duplicitous, and it clearly appears from the record that the defendants, notwithstanding their objection, were compelled to submit to a trial for the offense which the information purported to charge, on the erroneous theory that the other offense was one included in the crime which the information purported to allege, the objection for duplicity cannot be avoided, even though the information discloses a sufficient charge of a third offense, which might be construed to include the two former.

Appeal from District Court, Ward County; L. J. Palda, Jr., Judge.

Martin Mattison and others were convicted of shooting with intent to kill, and appeal. Reversed.Le Sueur & Bradford, for appellants. James Johnson, State's Atty.

ENGERUD, J.

The three defendants were arraigned on an information which was apparently designed to charge them jointly with the crime of shooting another with intent to kill, as defined in section 7115, Rev. Codes 1899. They demurred to the information, and thereby challenged its sufficiency because it did not substantially conform to the requirements of the Code of Criminal Procedure, and charged more than one offense. The demurrer was overruled, and the defendants entered pleas of not guilty. The jury returned a verdict finding the three defendants “guilty of an assault with a dangerous weapon with intent to do bodily harm, without justifiable or excusable cause.” A motion in arrest of judgment having been denied, the defendants were sentenced to imprisonment in the penitentiary for 1 year, 18 months, and 3 years, respectively. The defendants have appealed from the judgment.

It is apparent from the foregoing that the sentences imposed are not warranted by the verdict for the reasons stated in the recent case of State v. Cruikshank, 13 N. D. ---, 100 N. W. 697. The verdict does not in terms find the act of shooting or attempting to shoot; neither does it set forth facts sufficient from which shooting or attempting to shoot must necessarily be inferred. If no other errors affecting the verdict appeared in the record, we would be constrained to allow the verdict to stand as one for simple assault, and remand the case for sentence in accordance with the verdict. The record, however, discloses error fatal to the validity of the verdict. We are of the opinion that the information is vulnerable to the objections made thereto by defendants, and that their demurrer thereto should have been sustained, or the motion in arrest of judgment granted. The information is too long for repetition in full. It is extremely prolix, and is replete with redundant and unnecessary averments. In our opinion, the information charges at least three offenses. The first part of the body of the information, after stating time and place, sets forth the complete offense of shooting under section 7115, Rev. Codes 1899, as follows: “That at the said time and place * * * the said Martin Mattison, Erik Mattison, and Lye Storby, having and holding in their hands a certain firearm, commonly called a shotgun, which shotgun was then and there loaded and charged with gunpowder and leaden shots, did then and there willfully, unlawfully, feloniously, of their malice aforethought, without authority of law, and with a premeditated design to kill him, the said George Olson, discharge and shoot off said shotgun towards, against, and upon the said George Olson.” Then follows an averment to the effect that the shot so fired from said gun by the defendants struck, penetrated, and dangerously wounded said George Olson, and caused the loss of one of his legs. We have up to this point of the information facts which may be sufficient to charge an attempt to commit murder in the first degree. The allegations show that the defendants feloniously, with malice aforethought, and with a premeditated design to effect death, inflicted a dangerous wound upon their victim with a deadly weapon, but failed to consummate the intended murder because the wound was not mortal. Such attempt is punishable as a felony under sections 7693, 7694, Rev. Codes 1899. Further continuing the accusation, the information describes still another offense, which, after omitting many superfluous adjectives and redundant phrases, is set forth in the following language: “And at the time and place aforesaid, and by the means aforesaid, the said Martin Mattison, Erik Mattison and Lye Storby, willfully, * * * and with a premeditated design to kill him, the said George Olson, * * * did wound and destroy the leg of the said George Olson.” In plain English this part of the accusation alleges that the defendants unlawfully and willfully destroyed George Olson's leg, with a premeditated design to kill him. This is a sufficient charge of maiming under section 7101, Rev. Codes 1899, which defines that crime as follows: “Every person who, with premeditated design to injure another, inflicts upon his person any injury which disfigures his personal appearance or disables any member or organ of his body or seriously diminishes his physical vigor, is guilty of maiming.” It is true that the information alleges that the injury was...