42 Fla. 562 | Fla. | 1900
On December 22, 1899, an information was filed m the Criminal Court of Record of Duval county, charging ’"that Louis Hogan, Archibald Hogan and William Hogan, late of the county of Duval and State of Florida, on the 20th day of December in the year of
On January 9, 1900, upon motion of the State, the court granted a severance as to Louis Hogan, and the other defendants having- been arraigned and pleaded not guilty, a trial was had as to- them, resulting in a verdict as follows: “We, the jury, find the defendants guilty of assault with intent to murder in the second degree.” The defendants thereupon moved in arrest of judgment upon the following grounds among others:
1. The information is not sufficient to base a sentence on ffie verdict rendered.
2. No sentence or judgment can legally be imposed on the verdict of the jury. This motion was overruled and the ruling is assigned as error. The court sentenced the defendants to imprisonment in the State’s prison at hard labor. Archibald Hog-an fo-r a period of six years, and William Hogan for the period of fo-ur years. From these sentences the defendants sued out this writ of error. Various other rulings in the case are assigned as
It is quite evident that the trial was bad upon the theory that the information charged an offence under section 2403 Revised Statutes, which read as follows : “Whoever commits an assault on another, with intent to commit any felony punishable with death, or imprisonment for life shall be punished by imprisonment in the State prison not exceeding twenty years. An assault with intent to commit any other felony shall be punished to an extent not exceeding one-half the punishment which could have been inflicted had the crime been committed.” Plaintiffs in error argue that under our statutory definition of murder in the second degree, it is impossible that one can commit an assault with intent to commit murder in that degree. We do not deieim it necessary to enter up:on. a consideration of that question, which appears to be a difficult one, but shall assume for the purposes of this case that such an offence can be committed. The other question argued is that the information does not charge an assault with intent to commit the felony of murder in any degree. We think this contention is sound, and that the verdict rendered is for an offence not charged, or included in the charge made, in the information. It mlay be that the information sufficiently charges an assault, or an assault and battery, although it fails to allege that the assault was committed “unlawfully” or “without authority of law.” But we find no allegation that the assault, was committed “with intent to commit” any felony which is the offence denounced by the statute quoted. Construing it in Williams v. State, 41 Fla.-, 26 South. Rep. 184, we said: “This
The judgment is reversed and the cause remanded for further proceedings not inconsistent with this opinion.