58 Neb. 204 | Neb. | 1899
The essential part of the information filed by the county attorney in the district court of Box Butte county, and upon which the defendant in this case was tried and convicted, charged “that one Coote Mulloy, on the 11th day of January, in the year of our Lord one thousand eight hundred and ninety-seven, in the county of Box Butte and state of Nebraska, in and upon one William Mitchell, then and there being, unlawfully, feloniously, and purposely did make an assault on the said William Mitchell, and did strike, beat, and wound the said William Mitch-' ell, with the-intent of him, the said Coote Mulloy, to inflict a great bodily injury on the person of the said William Mitchell, contrary,” etc. The defendant was found guilty of an assault and battery. Motions in arrest of judgment and for a new trial were made and overruled, a.nd the court thereupon sentenced the defendant to pay a fine of $45 and the costs of prosecution. He has brought the case to this court for review.
The court below instructed the jury that they might find the defendant guilty of assault and battery, if justified by the evidence. It is insisted that this constituted
But it is strenuously urged that the offense described in said section 17b does not comprehend the lesser offense of assault and battery, and hence the conviction of such lesser offense was unauthorized. The statute, we have seen, embraces a simple assault, since the offense provided for by the section cannot be committed where no assault has been made, but might be perpetrated without a battery. While the section quoted does not necessarily comprehend a battery, it does include it in every case where the assault with the intent to commit great bodily injury is accompanied by a battery. This must be so, else there could be no conviction of the offense described in the section of the Criminal Code under consideration when the felonious assault is accompanied with, or followed by, an actual battery. It will be observed that the information before us charges not only an assault, but in express terms states that the defendant did “strike, beat, and wound” the prosecuting witness in the commission of the felonious assault. The offense charged is within the purview of the statute, and it is a well recognized principle of law that an information for a higher offense
In State v. Johnson, 58 O. St. 417, it was decided that a conviction for an assault and battery was proper under an indictment charging an injury to the person of another, with intent to maim or disfigure.
In State v. Klein, 53 Pac. Rep. [Wash.] 364, it was held that where an information for assault with a deadly weapon is sufficient to charge an assault and battery, a conviction may be had for the latter offense.
In Fleming v. State, 18 So. Rep. [Ala.] 263, the indictment charged a felonious assault, and it was ruled that the accused could be convicted thereunder for -an assault and battery with a weapon.
In State v. Keen, 10 Wash. 93, it was decided that actual violence, alleged as a fact in an information for assault with intent to commit rape, will justify a conviction of assault and battery.
Under an indictment for felonious assault it has been, ruled that a conviction of assault and battery may be had. (Chacon v. Territory, 34 Pac. Rep. [N. M.] 448; Corley v. State, 20 S. E. Rep. [Ga.] 212.)
Counsel for the accused cite State v. McDevill, 69 Ia. 549, and State v. McAvoy, 73 Ia. 557, to support the con- ' tention that the information was insufficient to sustain the verdict returned. The first of these cases is to the effect that the offense of assault and battery is not necessarily included in the crime of assault with intent to commit rape. In that case the court refused to instruct the
Turner v. Muskegon, 50 N. W. Rep. [Mich.] 310, cited by counsel for defendant, is not in point here. There the accused was charged with an -assault with intent to do great bodily harm, and he was convicted of an assault and battery. The prosecuting attorney, after verdict, asked leave to amend the information by inserting appropriate language charging a battery, and the same not having been granted, a mandamus was applied for. The writ was denied. The court, in its opinion, say: “The offense for which the respondent was tried is a statutory offense, and does not include the lesser one of battery. There is no charge in the information of the respondent having committed a battery, and no one can be convicted of an offense which is not charged in the information,' where the elements of the offense are not embraced in some greater offense charged. * * * It is plain that the information could not be amended so as to include the offense for which the jury convicted the respondent. The statute allows certain amendments to be made before the jury are sworn, and also others enumerated after verdict, but an amendment of this nature is not one which the statute permits.” That case is distinguishable from the one at bar, in that the information therein failed to charge a battery, while all the elements constituting that offense are plainly set forth in the information before us.
State v. Marcks, 58 N. W. Rep. [N. Dak.] 25, and Territory v. Dooley, 1 Pac. Rep. [Mon.] 747, to some extent sustain the position for which contention is made by defendant’s counsel, but we decline to follow in the direction they seemingly point. On principle, as well as authority, the conclusion is irresistible that the information authorized the verdict returned by the jury.
It is argued that the offense created by section 175 is a new and independent crime, not consisting of different degrees, within the meaning of section 487 of the Criminal Code, and therefore the accused, if not convicted of
Affirmed.