State v. McCaffery
| Decision Date | 15 April 1895 |
| Citation | 40 P. 63,16 Mont. 33 |
| Parties | STATE v. McCAFFERY. |
| Court | Montana Supreme Court |
Appeal from district court, Jefferson county; Frank Showers, Judge.
The defendant, Roger McCaffery, appeals from a judgment of the district court entered October 16, 1893, adjudging him guilty of the crime of assault, and sentencing him to pay a fine of five dollars and costs. Affirmed.
T. J Walsh and C. B. Nolan, for appellant.
H. J Haskell and Ella L. Knowles, for the State.
HUNT J. (after stating the facts as above).
The appellant contends that the information charged a simple assault, and not an assault with a deadly weapon to do a bodily injury, as defined by section 60 [1] of the Criminal Laws of Montana. The ground of his objection is cased upon the omission in the information of the technical word "feloniously," in the averment of the assault itself. For the purpose of considering this point, we may grant that the offense charged is a felony, and that the word "feloniously" is indispensable to the validity of the information; yet, when the whole charge is carefully considered, we find that the intent with which the assault was made is specifically alleged to have been, "then and there, feloniously to inflict upon the person of the said John F. Smith a bodily injury," etc. We are of opinion that an assault with a dirk knife, with an intent at the time thereof to "feloniously" injure another, is, by all reasonable rules of construction, nothing but a felonious assault, and that the information is good, as against the objection interposed. The essence of the crime charged is the intent with which the assault is made. Where, therefore, the intent, at the time of the assault, is alleged to have been feloniously to inflict the bodily harm, it follows that the expression of such intent, which was the attempt to do the injury, must have been with that wickedness of heart and mind contemplated by the law pertaining generally to felonies. So that, when the information averred and imputed to the defendant a felonious intent to do the bodily harm which he sought to inflict when he made the assault, it necessarily imputed a felonious intent in the assault itself then and there made, and the rules of criminal pleading are complied with by the alleged felonious character of the whole offense charged in the information.
After the information was filed, a trial was regularly had. The jury disagreed, and were discharged. Upon a second trial the defendant moved to strike the information from the files, for the reason that no leave of court was ever obtained to file the same, nor had the defendant ever been examined or committed by any magistrate for the commission of any crime. The motion was overruled. Thereupon the trial proceeded. After the state had introduced at least one witness defendant objected to the introduction of any evidence because the information "was verified by the county attorney only on information and belief, though no leave of court was ever had, nor was there ever any examination or commitment by any magistrate." The objection was overruled. The point made by defendant is that, because the sheriff verified the original complaint before the justice on information and belief, the whole proceeding before the magistrate was a nullity, and that, therefore, there was no examination and commitment as required by section 8, art. 3, of the constitution of the state. It is unnecessary to decide, in this case, whether a verification of a complaint before a magistrate, by an officer, on information and belief, is good or bad, because the question was not raised before the magistrate, or before plea by the defendant in the district court. And by failure to raise the point before plea to the merits the defendant waived any rights he may have had to object either to the original verification of the complaint before the committing magistrate, or to the verification of the information in the district court. People v. Harris (Mich.) 61 N.W. 871; Lambert v. People, 29 Mich. 71; State v. Fall, 56 Wis. 577, 14 N.W. 596; State v. Ruth, 21 Kan. 583; In re Lewis, 31 Kan. 71, 1 P. 283; State v. Blackman, 32 Kan. 615, 5 P. 173; State v. Otey, 7 Kan. 69; State v. Stoffel (Kan.) 29 P. 685; State v. Osborn (Kan.) 38 P. 572. In State v. Barnes (N. D.) 54 N.W. 541, it was decided that, where a defendant had waived a preliminary examination before a committing magistrate, he had placed himself in a position which authorized the state's attorney to file an information against him for the same offense charged in the original complaint. The provision of the Dakota constitution requiring examinations before informations are filed is substantially like our own, and it was held that where an examination has been tendered a defendant, even upon a fatally defective complaint, yet if he has the privilege of an examination, and interposes no objection to the complaint, the constitution and the laws have been complied with. The case is applicable to the one at bar. This defendant, according to the record, exercised the privilege, and after testimony was introduced the magistrate bound him over. The defendant is correct in his argument that the information in this case could only have been filed after examination and commitment. Leave of court never having been obtained, these two steps must necessarily have been taken before any right was conferred upon the county attorney to file or present an information. But, if these preliminary requisites had not been correctly pursued, an appropriate remedy was by motion to quash upon the ground that the information was not presented as prescribed by law. Section 206, Cr. Prac. Act, [2] applies to information, and the statute includes and contemplates, as a reason for quashing, such a defect (if it was a defect at all) as the defendant here complains of, provided the question of the regularity of the original complaint had not already been waived altogether by the failure of the defendant to object thereto before the committing magistrate. People v. Dowd, 44 Mich. 488, 7 N.W. 71; People v. Murphy, 56 Mich. 546, 23 N.W. 215; People v. Gardner, 62 Mich. 307, 29 N.W. 19. The record does not show that any leave was asked or granted to withdraw the plea of not guilty interposed at the first trial, and substitute another and different one at the second trial. Defendant, therefore, by the statute, waived any grounds of objection to the information which might have been properly raised by motion to quash. Cr. Prac. Act, § 208. [3]
In deciding the foregoing question of practice, the court by no means intend to hold that the verification of the original complaint in this case by the sheriff of Jefferson county, on information and belief, was defective. There is much force in the argument that, where a man verily believes that a crime has been committed, it is the best knowledge of which he may be possessed. It has been the practice, for years and years for officers to swear out warrants based upon information and belief, and we are not prepared to hold that the oath or affirmation required by the constitution to be made to any complaint charging a person with felony, for the purpose of causing an arrest and examination to answer to a charge in another court, must be made upon the direct knowledge of the person taking the oath. A sheriff is seldom in possession of facts within his own positive knowledge. Again, those who are in possession and knowledge of the exact facts are often unwilling to become complainants themselves. It seems to us that the proper construction of the words "probable cause," as used in the constitution, may be facts embodied in a complaint which charges the offense upon information and belief. See Washb. Cr. Law, p. 107; State v. Davie, 62 Wis. 305, 22 N.W. 411; State...
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