58 N.W. 25 | N.D. | 1894
The plaintiffs in error were arraigned and tried upon an information filed against them by the state’s attorney of McIntosh County, and were convicted of assault and battery, and sentenced to pay a fine of $75 each, and be imprisoned in the county jail for a period of 10 days. Motions in arrest of judgment and. for a new trial were made and overruled, and a bill embracing exceptions was settled. Such portions of the information as are deemed important in the decision of the questions raised on the record are given below: “Comes now A. W. Clyde, state’s attorney, within and for said county and state, and herewith informs said court and says that a public offense, namely, the crime of assault with intent to do bodily injury, has been committed by said defendants in the manner following, to-wit:” The information then sets out that the defendants were, at the time and place stated, armed with dangerous weapons, which are described, and that being so armed, the defendants “did willfully, unlawfully, feloniously, and without justifiable or excusable cause, assault, and with said dangerous weapons then and there, and with great force and violence, strike, beat, cut, bruise, and dangerously wound and injure one Andreas Gunther, with the intent on the
The information is obviously framed to charge the defendants with committing the statutory felony defined in the first part of § 309, Pen. Code, (§ 6510, Comp. Laws.) This particular offense was not,, however, named nor correctly described in general terms in the formal accusation which precedes the stating or charging part of the information. In the preliminary accusation the pleader has used certain language which indicates a purpose to frame
The information is in one count, and an examination will show that the language employed in its stating or charging part is a good deal involved, and far from being lucid as a statement of the offense sought to be charged. But, in our opinion, when the language is taken all together and fairly construed, it will be found to embrace the essentials of the statutory offense of an assault with a dangerous weapon, made without justifiable or excusable cause, and with intent to do bodily harm. The only difficulty in reaching this conclusion arises with reference to the words used in charging the intent with which the assault was made and the person upon whom it was made. Such averments are, of course, vital in charging the statutory offense defined in § 6510, and it must be confessed that the information contains no independent allegations which charge the defendants with assaulting Andreas Gunther with the felonious purpose named in the statute. But the accusation of an armed assault is made in terms, and closely connected with this charge are averments charging defendants, then and there, with an assault and battery committed with the same weapons upon the person of Andreas Gunther, with the specific felonious purpose named in the statute. The averment is certainly inartificial, and not to be commended, but we have concluded that the words employed incorporate a charge to the effect that defendants, when armed with dangerous weapons, and without justifiable or excusable cause, made an assault upon Gunther, with the felonious intent of doing him bodily harm. . From this conclusion it follows that the demurrer to the information upon the ground that the facts stated do not constitute a public offense was properly overruled.
But it also clearly appears that the information embodies a charge against defendants of committing another offense, i. e. the
As prosecutions under the statute in question are frequent, we will, as a guide for future cases arising under it, dispose of one other assignment of error. As has been seen, the trial court instructed the jury, in effect, that if the evidence satisfied them beyond a reasonable doubt that the defendants were not guilty of the felonious charge, but were guilty of .assault and battery, they could find defendants guilty of the offense of assault and battery. The jury returned a verdict for assault and battery. An exception to the instruction was saved, and a motion for a new trial was made. We think, however, that the point could have been as well presented on a motion in arrest of judgment, which was also made. Code Cr. Proc. § 425; Comp. Laws, § 7452. We are of the opinion that it was error to overrule the motion in arrest of judgment, not simply alone, and because the' information was invalid in that it charged two offenses, but upon the further ground that no conviction for assault and battery can be had under an information