94 N.W. 574 | N.D. | 1903
The accused was informed against by the state’s attorney of Griggs county for an assault and battery with a dangerous weapon, with intent to do bodily harm, and without justifiable or excusable cause, as defined in section 7145, Rev. Codes. The information, omitting the title, commencement, and concluding part, reads as follows: "Benjamin Tufte, state’s attorney in and for said county of Griggs and state of North Dakota, in the name and by the authority of the state of North Dakota, informs this court that heretofore, to wit, on the twelfth day of June, in the year of our Lord one thousand nine hundred and two, at the county of Griggs, in the state of North Dakota, _ one Benjamin K. Climie, late of the county of Griggs and state aforesaid, did commit the crime of assault and battery, with a dangerous weapon, in the manner following, to wit: That at said .time and place the said Benjamin K. Climie, without justifiable or excusable cause, armed with a dangerous weapon, and with intent to do bodily harm in and upon the person of one George H. Lawrence, then and there being, did willfully, unlawfully and feloniously commit an assault, on him, the said George H. Lawrence, the said Benjamin K. Climie, then and there armed with a dangerous weapon, and without justifiable or excusable cause, willfully, unlawfully, and feloniously, and with said dangerous weapon, and with intent to do bodily harm to said George H. Lawrence, did strike and ill treat and wound in and about the head.” The statute upon which this information was drawn reads: "Every person who, with intent to do bodily harm and without justifiable or excusable cause, commits any assault or assault and battery upon the person of another, with any sharp or dangerous weapon, or who without such cause shoots or attempts to shoot at another, with any kind of firearm or air gun or other means whatever, with intent to injure any person, although without intent to kill such person or to commit any felony, is punishable by imprisonment in the penitentiary not less than one and not exceeding five years, or by imprisonment in a county jail not exceeding one year.” Section 7145, Rev. Codes.
Appellant assails this information, as duplicitous, and claims to have saved his right to insist upon this objection on appeal by the interposition in proper time of a demurrer, specifying as grounds therefor that more than one offense is charged in the information. Counsel
We will, for the purposes of this case, assume, without deciding the motion, that the demurrer, as required by section 8092, Rev. Codes, was filed in proper time. Unless the demurrer was so filed, distinctly specifying duplicity as one ground of objection, the assignment that the information is duplicitous could not be considered on this appeal, as the point is waived if not taken by demurrer. Section 8099, Rev. Codes.
Appellant insists that the information charges a felonious assault, and also an assault and battery with a dangerous weapon, with intent to do bodily harm, and is therefore duplicitous. An assault is necessarily included as a constituent element in every assault and battery, and of assault and battery with a dangerous weapon, with intent to do bodily harm. While an assault is an offense, an assault followed by a battery is also a single offense. There cannot be a battery without an assault. At common law, an assault and battery committed at the same time was considered as but one offense, -and could be so charged. An assault -not followed by a battery could be punished as an offense, but if followed by a battery the assault was merged in the battery. 1 Hawkins’ P. C. 263, c. 62, section 1; Com. v. Eaton, 15 Pick. 273; Com. v. Tuck, 20 Pick. 361; State v. Reed, 40 Vt. 603; State v. Locklin, 59 Vt. 654, 10 Atl. 464. In Com. v. Tuck, the court, in citing the rule against duplicity, said: “It has exceptions. Where two crimes are of the same nature, and necessarily so connected that they may, and, when both are committed, must, constitute but one legal offense, they should be included in one charge.” The court then instances assault and battery as a familiar example of the rule stated. Our statute follows this distinction. An assault is defined as “any willful and unlawful attempt or offer, with force or violence, to do a corporal hurt to another.” Section 7141, Rev. Codes. “A battery is any willful and unlawful use of force or violence upon the person of another.” Section 7142, Rev. Codes. Every willful use of force necessarily includes a willful attempt or
Defendant’s demurrer stated the second and further ground that the information does not charge facts sufficient to constitute a public offense. Defendant’s counsel does not point out wherein he considers the accusation insufficient. A comparison of this pleading with the statute on which it is drawn will disclose the fact that the pleader has set forth every ingredient of the offense defined by the statute, and in the language of the statute, and also such identifying particulars of time, place, means, party injured, and circumstance as to fully advise the accused of the exact nature of the charge against him. It fully answers the statutory provisions as to certainty and sufficiency. Sections 8039, 8040, 8047, Rev. Codes-
The judgment appealed from is affirmed.
