People v. Tompkins

Hooker, J. The defendant asks that the information in this cause be held insufficient, upon the ground that it fails to allege that he knew that the person assaulted was an officer, or that he knew that he was at the time in the discharge of his duty. It is contended that it states only that the assault was willfully and knowingly made. It seems to me that this is hypercritical, and, moreover, that it is not an accurate interpretation of the language. The law attempts to punish an assault upon an officer while in the discharge of his duty by a penalty more severe than that imposed for other assaults. It requires that the offense shall be committed knowingly and willfully. If an assault is willful, it is intentional; and, if intentional, it must Be made knowingly. If, therefore, we are to apply these words as we are asked to do, the word “knowingly” is superfluous. There is no doubt that a knowledge that the person assaulted is an officer in the discharge of his duty was made an element of the offense, and that the insertion of the word “ knowingly ” in the statute had reference to this, and not to the assault, which could not be willful unless made intentionally, and therefore knowingly. Had this information stated that the defendant [433] willfully, with force and arms, assaulted A. B., knowing him, the said A. B., to be then and there an officer, etc., it would be held good. Instead of that, the exact order of language used in the statute (3 Comp. Laws 1897, § 11327) was followed, and, as it could have but one meaning, it was sufficient. We think the conviction must be set aside upon the ground that hearsay evidence of the ownership of the property sought to be levied upon was admitted. The conviction must be set aside, and a new trial ordered. The other Justices concurred.