100 N.W. 1091 | N.D. | 1904
The three defendants were arraigned on an information which was apparently designed to charge them jointly with the crime of shooting another with intent to kill, as defined in section 7115, Rev. Codes 1899. They demurred to the information, and
It is apparent from the foregoing that the sentences imposed are not warranted by the verdict for the reasons stated in the recent case of State v. Cruikshank, 13 N. D. 337, 100 N. W. 697. The verdict does not in terms find the act of shooting or attempting to shoot; neither does it set forth facts sufficient from which shooting or attempting to shoot must necessarily be inferred. If no other errors affecting the verdict appeared in the record, we would be constrained to allow the verdict to stand as one for simple assault, and remand the case for sentence in accordance with the verdict. The record, however, discloses error fatal to the validity of the verdict. We are of the opinion that the information is vulnerable to the objections made thereto by defendants, and that their demurrer thereto should have been sustained, or the motion in arrest of judgment granted. The information is too long for repetition in full. It is extremely prolix, and is replete with redundant and unnecessary averments. In our opinion, the information charges at least three offenses. The first part of the body of the information, after stating time and place, sets forth the complete offense of shooting under section 7115, Rev. Codes 1899, as follows: “That at the said time and place * * * the said Martin Mattison, Erik Mattison, and Lye Storby, having and holding in their hands a certain firearm, commonly called a shotgun, which shotgun was then and there loaded and charged with gunpowder and leaden shots, did then and there wilfully, unlawfully, feloniously, of their malice aforethought, without authority of law, and with a premeditated design to kill him, the said George Olson, discharge and shoot off said shotgun towards, against and upon the said George Olson.” Then follows an averment to the effect that the shot so fired from said gun by the defendants struck, penetrated and dangerously wounded said George Olson, and caused the loss of one of his legs.
The information in the case at bar was framed in flagrant disregard of the requirements above stated. It is not couched in ordinary and concise language. It might be'difficult for a person of ordinary understanding to definitely determine what offense is charged; and it alleges facts constituting three distinct crimes. If this information directly and with certainty disclosed that it was intended to charge the crime of attempted murder, we are not prepared to say that it would be objectionable for duplicity. In that case it might be urged with much force that malice, premeditated design to kill, shooting and maiming, were all necessary facts to allege in order to show an attempt to murder, and hence that the information is not duplicitous. Encyclopedia of Pleading and Practice, vol. 10, p. 535. This information, however, does not present such a case. The information expressly purports to charge the crime denounced by section 7115, Rev. Codes 1899 — shooting with intent to kill; but was evidently framed so as to include the crime of maiming, on the theory, apparently, that, inasmuch as the crime of maiming resulted from the commission of the shooting, therefore the former could be included in the charge of the latter
Returning, then, to the question as to whether we may avoid the fault of duplicity by construing this information as one for attempted murder, and, by holding that it was necessary to allpge the shooting and maiming in order to show the attempted murder, we are confronted by the fact that the information was not framed on that theory. As already stated, the information purports to charge the crime of shooting with intent to kill, and was obviously framed on the theory that maiming was an included offense. The record before us discloses that it was so construed by the prosecuting officer and by the court, and that the defendants were compelled to take issue and submit to a trial on that theory, notwithstanding their objection seasonably made. The information does not directly accuse the defendants of attempt to murder, and that charge is not disclosed with certainty by the language used. Under such circumstances we ought not to place a construction upon the information utterly at variance with the meaning manifestly intended to be conveyed in order to uphold an information so faulty as the one at bar. The defendants were entitled to a trial for one
The judgment is reversed, and the trial court is directed to set aside the judgment and verdict, and quash the information, and to make such further order permitting another information to be filed, or such further proceedings to be had, as may be consistent with the demands of justice and the provisions of the law.