16 Mont. 33 | Mont. | 1895
The appellant contends that the information charged a simple assault, and not an assault with a deadly weapon to do a bodily injury, as defined by section 60 of the
The essence of the crime charged is the intent with which the assault is made. Where, therefore, the intent, at the time of the assault, is alleged to have been feloniously to inflict the bodily harm, it follows that the expression of such intent, which was the attempt to do the injury, must have been with that wickedness of heart and mind contemplated by the law pertaining generally to felonies. So that, when the information averred and imputed to the defendant a felonious intent to do the bodily harm which he sought to inflict when he made the assault, it necessarily imputed a felonious intent m the assault itself then and there made, and the rules of criminal pleading are complied with by the alleged felonious character of the whole offense charged in the information.
After the information was filed, a trial was regularly had. The jury disagreed, and were discharged. Upon a second trial the defendant moved to strike the information from the files, for the reason that no leave of court was ever obtained to file the same, nor had the defendant ever been examined or committed by any magistrate for the commission of any crime. The motion was overruled. Thereupon the trial proceeded.
After the state had introduced at least one witness, defend
The point made by defendant is that, because the sheriff verified the original complaint before the justice on information and belief, the whole proceeding before the magistrate was a nullity, and that, therefore, there was no examination and commitment as required by section 8, Art. 3, of the constitution of the state.
It is unnecessary to decide, in this case, whether a verification of a complaint before a magistrate, by an officer, on information and belief, is good or bad, because the question was not raised before the magistrate, or before plea by the defendant in the district court. And by failure to raise the point before plea to the merits the defendant waived any rights he may have had to object either to the original verification of the complaint before the committing magistrate, or to the verification of the information in the district court. (People v. Harris (Mich.) 61 N. W. 871; Lambert v. People, 29 Mich. 71; State v. Fall, 56 Wis. 577, 14 N. W. 596; State v. Ruth, 21 Kan. 583; In re Lewis, 31 Kan. 71, 1 Pac. 283; State v. Blackman, 32 Kan. 615, 5 Pac. 173; State v. Otey, 7 Kan. 69; State v. Stoffel, 18 Kan. 364; State v. Osborn, 54 Kan. 473.)
In State v. Barnes, 1 N. D. 131, 54 N. W. 541, it was decided that, where a defendant had waived a preliminary examination before a committing magistrate, he had placed himself in a position which authorized the state’s attorney to file an information against him for the same offense charged in the original complaint. The provision of the Dakota constitution requiring examinations before informations are filed is substantially like our own; and it was held that where an examination has been tendered a defendant even upon a fatally defective complaint, yet, if he has the privilege of an examination, and inter
The defendant is correct in his argument that the information in this case could only have been filed after examination and commitment. Leave of court never having been obtained, these two steps must necessarily have been taken before any right was conferred upon the county attorney to file or present an information.
But, if these preliminary requisites had not been correctly pursued, an appropriate remedy was by motion to quash upon the ground that the information was not presented as prescribed by law. Section 206, Criminal Practice Act, applies to informations, and the statute includes and contemplates, as a reason for quashing, such a defect (if it was a defect at all) as the defendant here complains .of, provided the question of the regularity of the original complaint had not already been waived altogether by the failure of the defendant to object thereto before the committing magistrate. (People v. Dowd, 44 Mich. 488, 7 N. W. 71; People v. Murphy, 56 Mich. 546, 23 N. W. 215; People v. Gardner, 62 Mich. 307, 29 N. W. 19.)
The record does not show that any leave was asked or granted to withdraw the plea of not guilty interposed at the first trial, and substitute another and different one at the second trial. Defendant, therefore, by the statute, waived any grounds of objection to the information which might have been properly raised by motion to quash. (Criminal Practice Act, § 208.)
In deciding the foregoing question of practice, the court by no means intend to hold that the verification of the original, complaint in this case by the sheriff of Jefferson county, on information and belief, was defective. There is much force in the argument that, where a man verily believes that a crime
The defendant, before the jury were impaneled, interposed a plea of former jeopardy, upon the ground that heretofore, “on the-- day of January, 1893, a jury was duly impaneled and sworn to try the defendant upon the information herein filed, and that said cause was thereupon tried before the said jury, which said jury, after hearing the evidence submitted on behalf of the state and of +he defendant, retired, in charge of an officer, to deliberate on their verdict; that the said jury, upon so deliberating, unanimously agreed that the said defendant be acquitted of the charge, as set forth in full in the information, to wit, of assault with a deadly weapon with intent to do great bodily harm, so far as the same constitutes a felony, and thereupon agreed that he be found guilty of simple assault; that thereupon a disagreement ensued among the jurors upon said jury as to the amount of the fine which should be by the said jury imposed, eleven of the jurors comprising said jury voting and agreeing to impose a fine of fifty dollars and
By the plea of former jeopardy, defendant substantially alleged that there might have been an acquittal or conviction if the jury had understood the law at the first trial, and if the trial judge had not erred in discharging 'them when he did. But whether they correctly or incorrectly understood their privileges, or whether they were or were not properly charged, is immaterial, in the light of the fact that they did not deliver or return any verdict at all into court, as required by section 331 of the Criminal Practice Act. And until a verdict is filed by the clerk of the court a jury may change their finding at pleasure, or one juror may dissent, and thus defeat the verdict entirely, unless they afterwards agree before a separation. (Bish. Cr. Proc. § 1003; Morris v. Burke, 15 Mont. 214; Grant v. State, 33 Fla. 291, 14 South. 757; In re Thompson, 9 Mont. 381.)
It logically follows that there having been no complete verdict by delivery, there was no legal verdict at all, and the offer of defendant to show an agreement of the jurors in their room was properly excluded by the court. (Vide authorities
The jury stated to the court that they were unable to agree. How long they deliberated before making this statement, we cannot say, as the record contains no dates, except the-days of January, 1893. They may have deliberated only one hour, or the whole of that month, so far as we can tell. Indeed, the term of the court may have about come to an end when they were discharged. The appellant did not object to their discharge. It is therefore impossible for us to say that the court abused its discretion in discharging them when it appeared, as it did, that they could not agree on a verdict. The power to discharge them, under the facts disclosed, was in the court. (Criminal Practice Act, § 331.) This power was apparently exercised within the limits of judicial discretion. (State v. Reinhart, 26 Or. 466, 38 Pac. 823; State v. Jorgenson (Idaho) 32 Pac. 1129; Proff. Jury Trials, §§ 475-491; State v. Shaffer, 23 Or. 555, 32 Pac. 545; People v. Goodwin (N. Y.) 9 Am. Dec. 203; People v. Olcott (N. Y.) 1 Am. Dec. 168.
Our conclusion is that there never was any former jeopardy, and that the district court properly sustained the demurrer of the state.
We find no error in the case. The judgment is affirmed.
Affirmed.