State v. Yanta

• Decision Date: 12 May 1888
• Citation: 71 Wis. 669,38 N.W. 333
• Parties: STATE v. YANTA ET AL.
• Court: Wisconsin Supreme Court

71 Wis. 669

38 N.W. 333

STATE

v.YANTA ET AL.

Supreme Court of Wisconsin.

May 12, 1888.

Case certified from circuit court, Portage county.

This case comes here on the certificate of the judge of the Seventh judicial circuit submitting to this court for determination certain questions of law pursuant to Rev. St. § 4721. The information charged that one John Pulchinski, at a time and place therein named, being armed with a dangerous weapon, to-wit, a jack-knife, “did then and there, willfully, maliciously, and feloniously assault, cut, stab, and wound one Mike Walski, with intent willfully, maliciously, and feloniously, and with malice aforethought, him, the said Mike Walski, to kill and murder.” The information then attempts to charge the defendants Nick and Charles Yanta and John Schulist with being then and there present, and feloniously aiding, abetting, counseling, procuring, and commanding the said Pulchinski to so kill and murder the said Walski. The jury found the three defendants Nick and Charles Yanta and John Schulist guilty, as principals, in the first degree, of an assault upon the said Walski with intent to do him great bodily harm. A motion in arrest of judgment was interposed, whereupon the court certified the case for answers to the following questions: “ First. Does the information herein charge the defendants John Schulist, Charles Yanta, and Nick Yanta with any criminal offense? Second. If it does, can the defendants, under the information herein, be convicted as principals in the first degree? Third. Under the information herein, could the defendants, lawfully, be convicted of an assault with intent to do great bodily harm?”F. B. Lamoreux, C. E. Estabrook, Atty. Gen., and L. K. Luse, Asst. Atty. Gen., for plaintiff.

Raymond & Haseltine, for defendants.

LYON, J., ( after stating the facts as above.)

The third question propounded to us, to-wit, “Under the information herein, could the defendants, lawfully, be convicted of an assault with intent to do great bodily harm?” was answered in the negative by this court in the case of Kilkelly v. State, 43 Wis. 604. The rule was there stated to be that where offenses are included one with another, a person indicted for a higher may be convicted for one below, provided the averment in the indictment, in form, charges the lesser offense as well, and not otherwise. So it was there held that a charge of an assault with intent to murder will not warrant a conviction of an assault...