43 Wis. 604 | Wis. | 1878
1. In The State v. Fee, 19 Wis., 591, it was held that an indictment charging the offense substantially as it is charged in this information was not a good indictment for an assault with intent to murder, but only for a less offense included in that crime. The rule there established must be applied to this information, unless it has been changed by the criminal procedure act, ch. 137, Laws of 1871. Section 20 of that act provides, that “ when the offense charged has been created by any statute, or the punishment of such offense has been declared by any statute, the indictment or information shall, after verdict, be held sufficient to warrant the punish
We borrowed the act of 1871 from the statutes of Michigan, in which will be found both of the above sections in substance. Compiled Laws of Mich, (1857), §§ 6047, 6059. In 1866, the supreme court of that state held that under § 6059 (which corresponds with our sec. 20), an information charging an assault “ with intent to kill and murder,” contains a sufficient description of that offense. Rice v. The People, 15 Mich., 9. The Michigan statute describes the offense as an assault “ with intent to commit the crime of murder.” Our statute is substantially the same. R. S., ch. 164, sec. 35. The statute having received a construction by the highest judicial tribunal of that state before it was adopted here, we are bound by that construction. Draper v. Emerson, 22 Wis., 147; Perkins v. Simonds, 28 id., 90; Wiesner v. Zaun, 39 id., 188. It must be held, therefore, that the information sufficiently charges that the plaintiff in error assaulted Mappes with intent to murder him.
2. The instruction that .the plaintiff in error might be con
3. But, were it competent to convict the plaintiff in error, on this information, for an assault with intent to maim or disfigure, there would still remain a defect in the instruction,
It follows from the views above expressed, that the motion in arrest of judgment was properly denied, and that the motion for a new trial should have been granted.
By the Court. — The judgment of 'the circuit court is reversed, and the cause will he remanded for a new trial. The warden of the state prison will surrender the plaintiff in error to the sheriff of La Fayette county, who will hold him in custody until he shall he discharged, or his custody changed,, by due course of law.