| Wis. | May 12, 1888
The third question propounded to us, to wit, “ Under the information herein could the defendants lawfully be convicted of an assault with intent to do great bodily harm?” was answered in the negative by this court in the case of Kilkelly v. State, 43 Wis. 604" date_filed="1878-01-15" court="Wis." case_name="Kilkelly v. State">43 Wis. 604. The rule was there stated to be that where offenses are included one within another, a person indicted for a higher one may be convicted for one below, provided the averment in the indictment, in form, charges the lesser offense as well, and not otherwise. So it was there held that a charge of an assault with intent to murder will not warrant a conviction of an assault with intent to maim or disfigure,— the latter intent not being included in the former. 1 Bish. Crim. Law, § Y94.
Kilkelly v. State was followed, and the same rule applied, in State v. Shear, 51 Wis. 460" date_filed="1881-03-02" court="Wis." case_name="State v. Shear">51 Wis. 460. Mr. Justice OetoN there says: “ The lesser offense must be included in the greater hj necessary words of description, so that, if the words defining the greater offense are stricken out of the information, there would remain a sufficient description of the lesser offense.”
The third question, being thus answered in the negative, is decisive of the case, and it is unnecessary to answer the other two questions, which relate to the sufficiency of the information. The cause will be certified back to the circuit court, and that court advised to grant the motion in arrest of judgment.
By the Court.— Ordered accordingly.