9 Mont. 490 | Mont. | 1890
Both parties to this action appeal. The defendant was indicted for an assault upon one John Maze, with intent to commit murder. Upon the trial the jury returned the following verdict: “We, the jury, find against the defendant on his plea of former acquittal, and that he is guilty of a simple assault, and fix his punishment at a fine of fifty dollars,” whereupon the court pronounced judgment against the defendant that he “ pay the fine of fifty dollars assessed by the jury in the said above cause, and further that he pay the costs of this prosecution.”
The record shows that the defendant paid said fine of fifty dollars when the judgment was pronounced, but did not pay the costs of prosecution. The State, by its attorney, then moved the court for an order that defendant be committed to the county jail until said costs were paid. On the hearing of this motion, after argument of counsel for both parties, the court overruled said motion, on the ground, as stated by the court, “that it appears that there is no law to imprison a defendant for the non-payment of costs in such a case; and the defendant was thereupon ordered discharged.” To that ruling the State excepted, and by bill of exceptions reserved the question of law involved in said ruling, and the same is assigned by the State in its appeal herein as error.
We will consider this branch of the appeal first.
The section of our statute defining the crime of assault, and providing the punishment therefor (Comp. Stats. Grim. Laws, § 58), is as follows: “An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another; and every person convicted thereof shall be fined in a sum not less than five nor more than fifty dollars.”
The defendant’s counsel insists that, inasmuch as the law defining the crime of assault, and providing the punishment therefor, does not include the costs as part of the fine or punish
After a careful review and analysis of the various provisions of the statute defining crimes and punishments, and the manner of entering and enforcing judgments for costs in criminal actions, we conclude that the point on the part of the defendant is well taken, and that the order of the court should be sustained in this particular case. We question, however, that it should be so, even in this case, and under the same statute, if the defendant had been convicted of a simple assault in a Justice’s Court, or had been convicted in the District Court on appeal from the Justice’s Court. It will be observed that the statute governing the practice in criminal cases in the Justice’s Court, ■and in cases appealed from that court to the District Court, provides as follows (§ 508, Crim. Prac. Act): “In all cases of conviction under the provisions of this chapter, the court shall enter his judgment for the fine and costs against the defendant, and may commit him until the judgment is satisfied, as in cases in the District Court.” (See, also, §§ 514, 515, 517, Crim. Prac. Act.) These general provisions as to costs are confined to “cases of conviction under the provisions of this chapter,” which applies to cases commenced in the Justice’s Court. We do not find any such general provision applying to all cases of conviction in the District Court, requiring the costs to be made part of the penalty. It follows that in cases originally commenced in the Dist rict Courts, where the statute does not make the costs part of the punishment for the crime of which the party is convicted, there is no provision of statute authorizing imprisonment for non-payment of costs. There is provision, however, for enforcing the judgment for costs as in civil actious. (§ 410, Crim. Prac. Act.)
The statute frequently in defining crimes and punishments provides that persons convicted thereof shall be fined or imprisoned, or both, “with costs of prosecution,” or “together with costs of prosecution,” as in the cases provided for in sections 65, 147, 148, 179, 262, 265, and others of Criminal Laws Practice Act. In such cases, the costs are made part of the fine or punishment, to be enforced in the same manner as the
We will now proceed to consider and determine the matter assigned as error by the defendant as appellant.
It appears from the defendant’s bill of exceptions that the indictment upon which defendant was convicted, as above stated, charged him with the crime of assault upon one “John Maze,” with intent to commit murder. On his arraignment, the defendant entered a plea of “ not guilty,” and of “ former acquittal of the offense charged.” Upon the trial defendant offered in evidence a former indictment charging him with an assault upon one “John Moys,” with intent to commit murder, and with this former indictment defendant offered in evidence the journal of the court showing the trial thereon, and that on such trial defendant, by his counsel, moved the court “to dismiss the action on account of variance between the proof and the charge in the indictment; which, being fully heard and considered by the court, was sustained, whereupon the court instructed the jury to find the defendant not guilty;” that the jury returned its verdict accordingly, and the court further ordered that the defendant be held and admitted to bail in the sum of one thousand dollars, to await the action of the next grand jury. The record further shows that in connection with the evidence so offered by defendant “it was agreed between the counsel for the State and for the defendant that the offense charged in the'indictment under which the defendant is now on trial and the former indictment are one and the same offense; that the defendant was acquitted on the former trial for the reason that there was a variance between the proof and the indictment, in this, that in the indictment the party injured was described as ‘John Moys,’ and the proof shows that the party injured was ‘John Maze,’ and that on account of such variance the court instructed the jury to acquit the defendant,” which evidence and said admissions were offered “ for the purpose of showing former acauittal, as set up in the defendant’s plea.”
Objection was made by the attorney for the State to the
Counsel for defendant - now insists that the misnomer in describing the person assaulted, as alleged in the first indictment, was an immaterial variance, and that if such variance was immaterial, the acquittal on the former indictment is a bar to ¡conviction on the indictment in this action for assault on John Maze.
The statute provides (§ 223, Crim. Frac. Act): “If the defendant is formally acquitted on the ground of a variance between the indictment and the proof, or upon an objection to the form or substance of the indictment, it shall not be deemed an acquittal of the same offense.”
It has been held in a great number of cases that where the evidence shows a substantial mistake or misnomer (not merely a slight variation in spelling, where the same sound is preserved) in describing, or attempting to describe in the indictment the party injured, or whose property is injured or stolen, is fatal to the prosecution, and sufficient cause to discharge the prisoner on that prosecution.
Modern decisions seem to be quite unanimous on this general proposition. (Laynes v. State, 5 Port. 236; Donnel v. United States, 1 Morris, 141; Parchman v. State, 2 Tex. App. 228; Morgan v. State, 34 Tex. 677; People v. Allen, 61 Cal. 140; People v. Hughes, 41 Cal. 234; People v. McNealy, 17 Cal. 333.)
Taking the general proposition above laid down, together with the doctrine of idem sonans, we have a reasonable guide by which to determine the question in the case under consideration. Moreover, we have many particular examples to which the courts have applied these general doctrines. “Modern decisions make no distinction between a misnomer of the surname and the Christian name,” says Justice Collier in Laynes v. State, supra.
An examination of the indictment in the case at bar reveals the fact that the offense is not described with sufficient certainty to identify the act, if the name of the party assaulted be disregarded or deemed immaterial.
Judgment affirmed.
