State v. Morse
| Decision Date | 31 December 1914 |
| Docket Number | 3652. |
| Citation | 150 N.W. 293,35 S.D. 18 |
| Parties | STATE v. MORSE. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Bon Homme County; R. B. Tripp, Judge.
F. H Morse was convicted of assault with intent to kill, and from an order denying a new trial he appeals. Affirmed.
Joe Kirby, of Sioux Falls, F. D. Wicks, of Scotland, and French & Orvis, of Yankton, for appellant.
Royal C. Johnson, Atty. Gen., W. W. French, State's Atty., of Tyndall, C. M. Stillwill, of Aberdeen, and C. C. Puckett, of Tyndall, for the State.
A demurrer thereto on the ground of insufficient facts to constitute an offense, and that the nature and cause of the accusation were not revealed, was overruled. The trial court denied a motion for a change of venue. When the cause was reached for trial, defendant's counsel interposed the following challenge to the panel by dictating the same to the court reporter:
"At this time the defendant interposes a challenge to the panel on the ground that the same was not selected or drawn in the manner provided by statute; that the officers whose duty it was to draw the jury drew from the jury box some names that were not included in the list summoned to appear as jurors, and, after having drawn from the box the number of names provided for in the order of this court, discarded and threw aside certain names drawn and drew others in their place; and that some of the names of jurors drawn from the box were not summoned and are not present as jurors."
The state neither excepted to nor answered this challenge, and it was by the trial court overruled. Upon the examination of the jurors touching their qualifications, it appeared that four of the venire had given affidavits to the state's attorney for use in resisting the motion for change of venue in which they had asserted that they believed the defendant could have a fair and impartial trial in the county. Each was challenged for cause on the ground of actual and implied bias, which challenges were overruled, and each was excused by defendant upon peremptory challenge. The defendant used all of his peremptory challenges allowed by statute, and then asked the court for the right to exercise an additional peremptory challenge because of being compelled to use four peremptory challenges to displace said four jurors; which request was denied. The cause then proceeded to trial upon the testimony presented. The defendant made no requests for instructions to the jury. Thereupon the court charged the jury. Immediately thereafter and before the jury was directed to retire, one of the defendant's counsel asked the court if he might except to the charge after the jury had retired. The judge asked what the objection was, and counsel stated that the court did not charge that the jury would have to find that the assault was wrongful and unlawful. The judge said that exception could be taken after the jury retired. After the jury had retired, defendant excepted to the charge as follows:
Thereupon the jury found the defendant "guilty as charged under section 285, Penal Code." A new trial was sought, and from the order denying it this appeal was taken.
Defendant has presented six propositions for our consideration. He first contends that the information does not state facts sufficient to constitute an offense: (a) In that the crime charged necessarily includes assault, and that minor offense is not charged; (b) in that the information should have alleged premeditated design; (c) in that chapter 242, Laws 1913, violates the Constitution, presumably that portion of section 7, art. 6, which gives accused the right "to demand the nature and cause of the accusation against him."
Without determining whether the portion of said act of 1913 which amends section 221, C. Cr. Proc., violates the foregoing section of the Constitution, we are entirely clear that subdivision 6 of section 229, C. Cr. Proc., as amended by said act, does not violate it. Said section 229 as thereby amended is in part as follows:
"The indictment or information is sufficient if it can be understood therefrom: *** (6) That the offense charged is designated in such a manner as to enable a person of common understanding to know what is intended."
Viewed in this light, if the present information complies with said subdivision 6 it is sufficient. Section 285, Pen. Code, reads as follows:
"Every person who shoots or attempts to shoot at another, with any kind of firearm, air gun, or other means whatever, with intent to kill any person, or who commits any assault and battery upon another by means of any deadly weapon, and by such other means or force as was likely to produce death, with intent to kill any other person, is punishable by imprisonment in the state prison not exceeding ten years."
There is no force to the contention that the minor charge of assault should have been specifically set out. The authorities cited by defendant apply to the case of an attempt to commit a crime which crime involves a lesser offense. For example, if the information had charged the defendant with an attempt to assault Halberg, with intent to kill him, then the citation from 2 Bishop's Crim. Procedure, § 77, might have been applicable. Because the offense of assault with intent to kill necessarily includes in it the lesser offenses of assault and assault with a dangerous weapon is no reason for incorporating into the information all of the ingredients constituting the lesser offenses. Nor are the words "with malice aforethought," or other words indicating premeditated design, necessary to be included, because they are not contained in the statute designating the offense. Rice v. People, 15 Mich. 9; State v. Shunka, 116 Iowa, 206, 89 N.W. 977; State v. Kelly, 41 Or. 20, 68 P. 1; State v. Michel, 20 Wash. 162, 54 P. 995; State v. Ostman, 147 Mo.App. 422, 126 S.W. 964.
The information clearly and concisely stated that facts necessary to be stated under section 285, Pen. Code. It designated the offense in such a manner as to enable a person of common understanding to know what was intended, and it is sufficient. In this connection we cannot refrain from quoting with approval a laconic sentence by Mr. Justice Holmes in Paraiso v. United States, 207 U.S. 368, 28 S.Ct. 127, 52 L.Ed. 249: "The bill of rights for the Philippines, giving the accused the right to demand the nature and cause of the accusation against him, does not fasten forever upon those islands the inability of the seventeenth century common law to understand or accept a pleading that did not exclude every misinterpretation capable of occurring to intelligence fired with a desire to pervert."
Defendant next says that his challenge to the panel hereinbefore set out should have been sustained upon its merits, and because no exception thereto nor answer thereto was filed by the state. The Attorney General contends that the trial court properly overruled the challenge because it was not in writing and because no evidence was offered in support of the truthfulness of the challenge. If we should apply the reasoning of the Wisconsin court in Ullman v. State, 124 Wis. 602, 103 N.W. 6, and hold that a challenge dictated to the court reporter was in writing in contemplation of law, we would still find, as hereinafter set forth, that the disallowance of the challenge was not erroneous. It is therefore not necessary to decide whether this challenge was in effect in writing.
Sections 320, 321, and 322, Code Crim. Pro. are as follows:
Examining the several clauses of the challenge, we find that the clause, "that the same was not selected or drawn in the manner provided by statute," is clearly not an allegation of fact, but is purely an allegation of a conclusion. The assertion that the jury drawers "drew from the jury box some names that were not included in the list summoned to appear as jurors" is indefinite. If is was thereby intended to aver that all of the names drawn were not placed upon the list given to the sheriff, the language used does not assert that fact. If it was thereby intended to aver that there was an omission to summon certain jurors that averment is covered by the later assertion, "that some of the jurors drawn from the box were not summoned and are not present as jurors." If the latter averment be considered as a plain and distinct specification of fact, it is still insufficient under section...
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