1. Thе special plea in bar of this prosecution sufficiently avers that the charge of the -murder of Coates in the first information, and the charge of an assault with intent to murder Defoy in the present information, аre predicated upon one and the same act of Winn. It is correctly argued in the plea, as it was at the bar, that if he committed the alleged felonious assault upon Defoy, and in doing so killed Coаtes, although unintentionally, he is
The arguments, for and against the sufficiency of this special plea are very full and able, and numerous adjudiсations are cited on either side in support of the respective propositions of counsel. To review the cases would call for a treatise on this branch of the law. We do not feel called upon to undertake the task of writing one. We adopt as the law on this subject the rule laid down by Chief Justice Shaw in Comm. v. Roby,
The reasonableness and justice of the above rule is shown and emphasized by the testimony on the trial of this case. It apрears quite satisfactorily, if not conclusively, therefrom that Wmn made a distinct felonious assault upon Defoy when he pointed his loaded revolver at him and snapped it, which had no connection with the killing of Coates, and that such killing resulted from the struggle to disarm Winn, and was purely accidental. Yery likely Winn was acquitted of the murder of Coates on similar proofs, and the jury may not have considered,— probably did not consider,— whether Wmn intended to kill Defoy or not whеn the revolver missed fire. Had issue been taken upon the special plea, and tried on the testimony in this record, we should expect the jury to find that the first assault, to wit, the attempt by Winn to shoot Defoy, had nothing to do with the acquittal of Wmn of the murder of Coates, and that the question whether such attempt was or
2. The prosecution being pending in the circuit court of Langlade county, Winn filed an affidavit of the prejudice of the judge of that court (Judge Myees), and thereupon the court made an order changing the place of trial to the circuit court of Sheboygan county. Soon thereafter it was discovered that ch. 166, Laws of 1889, so amended sec. 2626, E. S., as to require the cause to be sent to some cоunty in an adjoining circuit. . Langlade county was in the tenth, and Sheboygan county in the fourth, circuit, and these circuits did not and do not adjoin. Thereupon, on motion of the district attorney (the record still remaining in Langlade county), the court vacated the order changing the place of trial to Sheboygan county. It was then discovered that the affidavit of prejudice failed to state that the affiant had good reason to believe that the judge was prejudiced, but only that he had reason so to believe. No further order was made changing the place of trial. Before the trial Judge Myees died, and the cause was tried in thе circuit court of Langlade county before Judge Goodlaud, his successor. No affidavit of his prejudice was made, and there was no further application that the cause be sent to another сounty. It is now claimed that because of the foregoing proceedings the circuit court of Langlade county had no jurisdiction to try the accused. We think other
3. In his charge to the jury the learnеd circuit judge said: “ If you find that the defendant, knowing the revolver to be loaded, pointed it at Defoy and pulled the trigger thereof with intent to shoot Defoy, the intent to kill is proven, even though you should also find that the rеvolver missed fire or failed to go off.” Error is assigned upon this sentence of the charge. The criticism upon it is that it assumes the intent to kill as a legal proposition if Winn attempted to shoot Defoy, whereas his intent may have been only to wound or maim Defoy, and not to kill him. It is perfectly obvious that the judge only intended to say to the jury that the fact that the revolver missed fire did not affect the intent of Winn in attempting to fire it, and that he employed the word “ shoot ” as synonymous with “ kill,” the word being frequently, perhaps usually, employed in that sense. This is very clear from the immediate context, in which the court fully and accurately submitted the question of intent to the jury. We think it quite impossible that the jury could have been misled by the possible want
4. Error is also assigned upon the following passage in the charge: “ Ordinarily, when an offense is charged, when the charge is assault with intent to commit the felony, the jury is at liberty, if they so think or if the evidence warrants them to do it, to return a verdict of not guilty of the intent and guilty of the assault. T sаy this is ordinarily the case, but I do not think it is the case here. I therefore charge you that your verdict in this case must be either guilty or not guilty; that under the evidence in this case you are not at liberty to return any other verdict except as I have said, guilty or not guilty.” It is the settled law of this court, whatever the decisions may be elsewhere, that, assuming the above instruction to be inaccurate, and that the jury should have been instructеd that if they should negative the felonious intent charged they might still convict Winn of an assault, such inaccuracy is not reversible error. It ivas so held in Dickerson v. State,
By the Court.— The judgment of the circuit court is affirmed.