State v. Murdoch

The opinion of the Court was delivered by Fenner, J. Error is assigned on the face of the record, upon the following ground: “ that the verdict rendered herein is null and void,' there being a fatal variance between the crime charged and the finding of the. jury.^ '• " •'•■•-'The'-information charged the prisoner with the offense denounced in Section-791, Rev. Statutes, viz: shooting with intent to commit murder. ■The verdict"was: “ guilty of wounding with a dangerous weapon less than mayhem; ”• being the offense denounced in Rev. Statutes, See. 794". [730] We have heretofore held, that the offense of stabbing “ with a dangerous weapon, with intent to commit murder,” (covered by Sec. 791, R. S.) and that of wounding with a dangerous weapon less than may-:, hem, were separate and distinct crimes, which could not be joined in the same count of an indictment. State vs. Johns, 32 An. 812. In a prior case, the precise question here presented arose, and it was held that, under am indictment, charging shooting with intent to kill br murder, a verdict of guilty of inflicting with a dangerous weapon a wound less than mayhem, was fatally variant. State vs. Pratt, 10 An. 191. This authority, if adhered to, is conclusive. We find its reasoning apt and satisfactory, and its doctrine well supported by authority. ' The reflection cast upon it in Jessie’s case, 30 An. 173, was uncalled for and, we think, resulted from inadvertence in not observing the fundamental difference between the two cases. In Jessie’s case, the verdict was “guilty of inflicting a wound less than mayhem with intent to MU;” the italicized words bringing the case within the authority of Stouderman’s case, 6 An. 286, which held, that a verdict of wounding with intent to Mil was covered by the information, charging assault with a dangerous weapon with intent to murder; or, in other words, that the intent'to Mil was necessarily included within the intent to murder charged. But in Pratt?s case, as in the instant one, the verdict was silent as to any intent, and the Court, after approving Stouderman’s case, said: “ But the charge of inflicting a wound less than mayhem is not necessarily included in a charge of shooting with a dangerous weapon with the intent to kill and murder. * * * Here the jury have found a verdict for a statutory offense hot charged in the bill of indictment by averments comporting with the terms of the statute, and not necessarily embraced in the offense as charged.” '• -We adhere to this doctrine, which equally results from our own prior decision in John’s case. We have examined the text writers and authorities in England and America, without finding anything in conflict therewith. .Take, for instance, the enumeration by Mr. Wharton of the cases in which verdict for a minor may be sustained under indictment for major offense.: “ Thus, if A be charged with feloniously killing B of malice prepense, and all but the fact of malice prepense be proved, A may clearly be convicted of manslaughter, for the indictment contains all the allegations essential to that charge. * * * Another illustration is that bf assaults upon, officers, assaults with battery, or assaults witli felonious intent, where, as has been seen, all but the assault may be rejected [731] as surplusage, and the defendant convicted of that alone. And so of indictments for adultery, in which they may be convictions for fornication. An indictment charging that the defendant did ‘ embezzle,' steal, take and carry away,’ will be good for larceny.” 1 Whart. Cr. L. Sec. 627; 1 Archbold, pp. 309, 310. • In every case cited, proof of the major would necessarily include' proof of the minor offense. • ' But obviously, proof of “ shooting with intent to murder,” might well be made without proof of “ inflicting a wound less than .mayhem.’?.' The nature of the wound, which is of the essence of the latter offense,; is not directly or indirectly put at issue. There is to be considered the; further fact that, under a charge of shooting, defendant is found guilty of inflicting a wound less them mayhem with a dangerous weapon, which, for ought that appears, may not have been a shooting at all. • •-> If Delany’s case, 26 An. 434, is in conflict with Pratt’s case, which is doubtful, it is unreasoned and it is .not supported by the-authority which it refers. The unfleported case at Monroe, referred to, is unknown to us, and: could not avail with us to overrule the well-considered and thoroughly; sound doctrine of Pratt’s case. It is, therefore, ordered that the judgment be arrested, that the sen-, tence be set aside, and the prisoner discharged.