State v. VoSburgh

• Decision Date: 12 April 1892
• Citation: State v. VoSburgh, 82 Wis. 168, 51 N.W. 1092 (Wis. 1892)
• Parties: STATE v. VOSBURGH.
• Court: Wisconsin Supreme Court

82 Wis. 168

51 N.W. 1092

STATE

v.VOSBURGH.

Supreme Court of Wisconsin.

April 12, 1892.

Error to circuit court, Dane county; ROBERT G. SIEBECKER, Judge.

Prosecution against Wallace Vosburgh for an assault with intent to commit great bodily harm.From a judgment on a verdict of guilty of a simple assault defendant brings error.Reversed.Smith & Buell and R. M. La Follette, for plaintiff in error.

J. L. O'Connor, Atty. Gen., for the State.

ORTON, J.

The plaintiff in error was tried on an information charging him with having committed upon the body of one J. G. Mawney an assault with intent to do him great bodily harm, and was found by the jury “not guilty of an intent to do great bodily harm,” but “guilty of the assault;” whereupon the court sentenced him to be punished by confinement in the county jail of Dane county for the term of one year, under and by virtue of section 4696, Rev. St.That section reads as follows: “In all cases of indictment or information in the circuit court for assault with intent to commit any felony, it may be lawful for the jury, in case they do not find the felonious intent charged, to convict of the assault; and the court shall have power to sentence the person so convicted to be punished by imprisonment in the county jail for a term not exceeding one year, or by fine not exceeding $500.”The only question in this case brought to our attention is whether the plaintiff in error was properly sentenced for one year in the county jail under the above section; or should he have been sentenced to imprisonment in the county jail not more than three months, or by fine not exceeding $100, under section 4398, Rev. St., as for a simple assault.The statute under which the plaintiff in error was tried (section 4377, Id.) reads as follows: “Any person who shall assault another with intent to do great bodily harm shall be punished by imprisonment in the state prison not more than three years, nor less than one year, or in the county jail not more than one year, or by fine not exceeding five hundred dollars, nor less than one hundred dollars.”It will be observed that the intent to do great bodily harm constitutes a felony in itself, as defined in section 4637, Id., which provides that “the term ‘felony,’ when used in any statute, shall be construed to mean an offense for which the offender, on conviction, shall be liable by law to be punished by imprisonment in the state prison.”There is no other felony referred to in defining the offense, except the intent to do this particular act.All the other offenses of intent to commit murder, robbery, or rape, or other felony are both felonies in themselves, the same as this offense; but there is something more, and that is the act which is the object of the intent is a felony, and a felony at common law, as well as by the abovestatute.There can be no doubt but that the above section 4696, Id., refers to this class of offenses in the language, “with intent to commit any felony,” and refers to no other offenses, although they may be felonies in themselves under the statute,...