35 Wis. 308 | Wis. | 1874
An information was filed in the circuit court against the plaintiffs in error, in which it was charged, in apt and proper terms, that the said Julia Nichols had theretofore concealed the death of a child, the issue of her body, which, had it been born alive, would have been a bastard, so that it might not be known whether such issue was born alive or not, or whether it was not murdered ; and that Dudley, the other plaintiff in error, incited and procured her to commit such offense. The paragraph of the information which sets out Julia's offense, does not conclude with the formula “ against
It will readily be perceived that the information is exhibited against Julia as the principal offender against the provisions of the R. S.., ch. 170, sec. 6 (Tay. Stats., 1897, § 6), and Dudley as an accessary before the fact, pursuant to R. S., ch. 172, sec. 2 (Tay. Stats., 1903, § 2). The plaintiffs in error were both •convicted of the offense charged against them respectively, and sentenced each to pay a fine of one hundred dollars.
But two questions are presented for determination: 1. Can there be an accessary to the offense charged in the information to have been committed by Julia Nichols ? and, 2. Is the omission of the formula above mentioned fatal to the information as against her ?
1. At the common law there can be no accessaries to any offense below a felony. The offense charged in the information to have been committed by the female plaintiff in error is only a misdemeanor. Hence, in the absence of a statute on the subject, it would necessarily be held that this information cannot be sustained against Dudley.
It is provided by statute that every person who shall be ac-cessary to any felony, before the fact, by counseling, hiring or otherwise procuring such felony to be committed, shall suffer the punishment prescribed for the principal felon, and such person may be informed against and convicted as an accessary before the fact, with the principal felon. (R. S., ch. 170, secs. 1 and 2.) Sec. 14 of the same chapter is as follows: “ 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.” (Tay. Stats., 1906, § 14). In Wilson v. The State, 1 Wis., 184, decided more than twenty years ago, section 14, just quoted, received a construction. It was there held that this statute does not make an offense a felony which is only a mis
Applying that interpretation to sections one and two, above mentioned, they must be read as follows:
“ Sec. 1. Every person who shall be aiding in the commission of any ofíense, for which the offender, on conviction, shall be liable by law to be punished by imprisonment in the state prison, or who shall be accessary thereto before the fact by counseling, hiring or. otherwise procuring such offense to be committed, shall be punished in the same manner as is or shall be prescribed for the punishment of the principal offender.”
“ Sec. 2. Every person who shall counsel, hire or otherwise procure any offense to be committed, for which the offender, on conviction, shall be liable by law to be punished by imprisonment in a state prison, may be indicted or informed against and convicted as an accessary before the fact, either with the principal offender,” etc. (Tay. Stats., 1908, §§ 1 & 2.)
A person convicted of the principal offense charged in this information is liable by law to be punished by imprisonment in the state prison. (Id., 1897, § 6.) The conclusion is irresistible, that such offense, although not a felony, admits of ac-cessaries, by virtue of the statute, and that Dudley could legally be informed against and convicted as an accessary before the fact to the offense charged in the information.
2. Are the words, “against the peace and dignity of the state,” at the conclusion of the first paragraph of the information, essential to the validity of the information ? The constitution (art. VII, sec. 17), provides that “ all indictments shall conclude against the peace and dignity'of the state.” This formula is a mere rhetorical flourish, adding nothing to the substance of ths indictment, and it is difficult to perceive why the mandate for its use was inserted in the constitution. Yet it is there, and
In view of tbe uselessness of the formula, tbe court would probably be justified in bolding that a literal compliance with the constitutional mandate is sufficient, and hence, that if the indictment as a whole concludes in the prescribed form, no matter how many counts it may contain, this is all that is required.
But perhaps a better answer to the objection that the mandate of the constitution has been disregarded in this case, is, that we have here no indictment, but an information. The former is an accusation by the grand jury, the latter by a district attorney; and while the constitution binds the grand jury to the use of a given form of expression in the conclusion of an indictment, it imposes no such obligation upon the district attorney in respect to an information. It being a question of mere style, we find no good reason for extending the operation of the constitutional mandate beyond the limits prescribed by the language of the provision itself. Its operation must therefore be confined to indictments.
It is true that the statute form of an information concludes with the formula under consideration. Its use, however, is not indispensable to the validity of the information. Laws, of 1871, ch. 187, secs. 10 and 11 (Tay. Stats.-, 1981, §§ 25 and 26).
Our conclusion is, that'the judgment and sentence of the circuit court, as against both of the plaintiffs in error, should be affirmed.
By the Court. — It is so ordered.
