69 Wash. 561 | Wash. | 1912
The plaintiff was charged, by information filed in the superior court for Walla Walla county, with the crime of manslaughter, as follows:
“On the 26th day of August, 1911, at and within the county aforesaid, in and upon one Della Reams, then and there being, the said John A. Hamilton and Alice J. Prather did commit an assault, she, the said Della Reams, being then and there a woman pregnant with a quick child, and upon her, the said Della Reams, did then and there use and employ, and caused to be used and employed, certain instruments and other means, the names, kinds and descriptions of which are to this informant unknown, with intent then and there to cause the miscarriage of her, the said Della Reams, so pregnant as aforesaid, such miscarriage not being then and there necessary to preserve the life of her, the said Della Reams, and, with the instruments and other means by them, the said John A. Hamilton and Alice J. Prather, so used and employed with the intent aforesaid, did then and there inflict upon her, the said Della Reams, and upon the said quick child of which she was then and there pregnant as aforesaid, divers wounds, punctures and other mortal injuries, and did then and there and thereby produce the death of her,, the said Della Reams, and of the said quick child, and did then and there and thereby commit the said crime of manslaughter.”
Upon the trial, the jury found the defendant Hamilton guilty of assault in the third degree. Thereupon the court adjudged that he pay a fine of $150 and costs of prosecution. From this judgment he has appealed.
The principal and only contention made by counsel for appellant which we deem necessary to notice is, that a conviction cannot be lawfully had for assault in the third degree under this information, because such crime is not included within the crime of manslaughter as therein charged. The
The latter section defines assault in the third degree as follows:
“Every person who shall commit an assault or an assault or battery not amounting to assault in either the first or second degrees, shall be guilty of assault in the third degree, and shall be punished as for a gross misdemeanor.”
Since the meaning of the words “assault” and “assault and battery” are not defined by statute, we must resort to their common law meaning. Now the authorities seem to be uniform in holding that in charging assault or assault and battery, when those words are used only in their common law meaning, an indictment or information need not set out the particular acts of violence which constituted the assault or assault and battery. 2 Bishop, Directions and Forms, § 201; 1 McClain, Criminal Law, § 252.
The argument of counsel for appellant seems to proceed upon the theory that this information is defective as charging assault or assault and battery, in that it fails to sufficiently charge the facts other than the mere facts of assault and assault and battery which it is argued are mere conclusions. Assuming that these general facts only are charged, the only decision of this court which may seem to support this view is that in the case of State v. Heath, 57 Wash. 246, 106 Pac. 756. But an examination of that decision will show that the court was dealing with the old statute defining assault
Some contentions are made upon the introduction of evidence, but they rest upon the sufficiency of the information as charging assault and assault and battery, and therefore do not require further discussion. The judgment is affirmed.
Gosb, Crow, Elms, and Chadwick, JJ., concur.
