194 Mich. 524 | Mich. | 1917
The respondent was arrested upon a complaint charging him as follows: On the 2d day of October, 1915, at the township of Crystal Lake, and in the county aforesaid, one Elmer Andre, late of said township and county, feloniously did make an assault upon one William Robinson with intent then and there to do great bodily harm to the said William Robinson less than the crime of murder.
At the examination before the justice and before any testimony was taken a motion to quash was made by the attorney for the respondent which motion was overruled. The respondent was bound over to the circuit court where an information reading as follows was filed, omitting the formal beginning and ending:
“W. E. Daines, prosecuting attorney in and for the said county of Benzie aforesaid, for and in behalf of the people of the State of Michigan, comes into said court in the March term thereof in the year one thousand nine hundred sixteen, and gives the court here to understand and be informed that one Elmer Andre, late of the township of Crystal Lake in the county of Benzie and State of Michigan, heretofore, to wit: On the 2d day of October, A. D. 1915, at the township of Crystal Lake, in the county of Benzie aforesaid feloniously did make an assault upon one William Robinson with intent then and there to do great bodily harm to the said William Robinson less than the crime of murder. Contrary to the statute.”
“Therefore it is ordered, adjudged by the court now here that the said Elmer Andre be confined in the county jail of Benzie county, Michigan, for a period of sixty days, and also that the said Elmer Andre pay a fine of two hundred dollars within forty-eight hours, and that in default of the payment of the said fine of $200 that the said Elmer Andre be confined in said jail for the period of one year from and including this day.”
The various assignments of error present several interesting questions, but an answer to one of them :is decisive of the case. That question is, Can respondent be legally convicted of assault and battery under the information filed against him? It will be noted that the word “battery” does not appear in the inforifiation, nor do the words “did then and there beat, bruise, wound, and ill treat,” which might be regarded as equivalent to a charge of assault and battery, appear therein. See People v. Ellsworth, 90 Mich. 442 (51 N. W. 531).
In Turner v. Circuit Judge, 88 Mich. 359 (50 N. W. 310), it was held:
“A respondent cannot be convicted of assault' and battery under an' information charging him with the statutory offense of ‘assault with intent to do great bodily harm less than the crime of murder/ but not charging a battery; nor can the information be amended, after verdict and before judgment, so as to include such latter charge.”
See, also, Hanna v. People, 19 Mich. 316, and People v. Howard, 179 Mich. 478, 488 (146 N. W. 315).
The case will be remanded, with directions to the trial judge to proceed to judgment.