State v. Houghton

75 P. 822 | Or. | 1904

Mr. Justice Wolverton

delivered the opinion.

The defendant, having been charged with an attempt to commit the crime of larceny from the person, was convicted upon trial of simple assault, and sentenced to imprisonment in the county jail, “at hard labor,” for a period of six months. He complains, first, of the conviction, and, second,' of the sentence.

1. As to the first, he insists that the crime of simple assault is not necessarily included in a charge of an attempt to commit the crimfe of larceny from the person,' and therefore that he was unlawfully convicted. It is difficult, to conceive how larceny from the person could be accomplished without an assault. An attempt to commit larceny from the person might or might not be accompanied with an assault, but the difficulty of ■ its inclusion with the larger offense is obviated here, as the information charges that the defendant assaulted the prosecuting witness, and thrust his hand in the witness’s pocket with the intent to steal, take, and carry away from his person the money and chattels, if any such he should find. The crime as alleged could not have been committed without at the same time committing an assault upon the person, and hence the latter, being the lesser offense, was necessarily included in the former.

2. The second complaint is certainly not 'without merit. The defendant having been convicted of simple assault, he was punishable only by imprisonment in .the county jail or by fine: B. & C. Comp. § 1772. In this case the court went further than the statute permits. It condemned the defendant to hard labor, as well as imprisonment, thereby adding something of material moment to the penalty prescribed by the statute. This was error.

3. Nor can the words “at hard labor” be treated as mere surplusage. They have a distinct meaning, and qualify the judgment rendered. If they are stricken out, we have a different judgment from the one pronounced; and, if they stand as rendered, the judgment is unwarranted.

4. We cannot make the correction here, but we can remand the cause to the trial court for that purpose: State v. Marple, 15 Or. 205 (14 Pac. 521). The conviction being regular, the defendant is not entitled to a new trial, but he is entitled to a proper judgment upon the conviction had.

The judgment entered will therefore be reversed, and the-cause remanded to the court below, with directions to pass such sentence as the law authorizes. Reversed.