State v. Garvey

By the Gowrt -"Wilson, Oh. J. The plaintiff in error asks for a reversal of the judgment in this case, for insufficiency of the indictment, and errors in the charge and rulings of the court. No objection was taken to the indictment by demurrer or motion, and therefore none can now be entertained except on the ground that the facts stated do not constitute a public, offence, the jurisdiction of the court not being questioned. The defendant below was charged under Chap. 41 of the Laws of 1964, with an assault with intent to do great bodily •harm. That statute provides, that “if any person being armed [161] ■with a dangerous weapon, shall assault another with intent to do great bodily harm, he shall be punished,” &c. The indictment is as follows: “John Garvey is accused by the Grand Jury of the county of Sibley, by this indictment, of an assault with intent to do great bodily harm to one Thomas Callinan, committed as follows: “ The said John Garvey, heretofore, to-wit, on the twenty-sixth day of September, a. d. 1865, in the county of Sibley, and State of Minnesota, then and there being armed with a deadly and dangerous weapon, which he then and there in his right hand held, to-wit, a pistol known as a navy revolver, then and there loaded with powder and ball, did feloniously, willfully, deliberately and premeditatedly, and without authority of law, and of his malice aforethought, make an assault on the said Thomas Callinan, inflicting a severe wound in the left breast of him Thomas Callinan, with intent, then and there, with the said pistol aforesaid, so loaded as aforesaid, feloniously, willfully, deliberately and premeditatedly, and without authority of law, and of his malice aforethought, to do great bodily harm to him the said Thomas Callinan, and so the jurors aforesaid,” &c., &c.- The defendant claims that this indictment only charges an aggravated assault, and not an assault with intent to do great bodily harm under the statute. We think this objection untenable. While in naming the offence in the indictment, it is termed an assault with intent to do great bodily harm, without charging that the defendant was at the time armed with a dangerous weapon, yet in the statement of the acts constituting the offence, it is plainly and specifically alleged, that the defendant was thus armed. This is sufficient under our statute. See Secs. 2 and 3, Ch. 105, Comp. Stat.; Sec. 12, sub. 6 and J, Ib.; Sec. 13, Ib.; State v. Hinkley, 4 Minn. 357-8. On the trial the court instructed the jury “that the averments of ‘feloniously, willfully, deliberately and premeditatedly,’ and the words ‘malice aforethought,’ were surplusage, [162] and need not have been averred in the indictmentwhich ruling was excepted to, and is here urged as a ground of error. Whether the erroneous statement of the court to the jury, as to the requirements or sufficiency of an indictment would be ground for reversing a judgment, it is not necessary for us here to determine, as we think the indictment in this case would be sufficient, after said words and phrases were stricken out. These terms stricken out, the indictment .still shows that the defendant, without authority of law, made the assault with intent to do great bodily harm. This shows the willful and criminal character of the act, and when the indictment shows that the act charged as the offence is a crime, it will be sufficient, though the adverb “feloniously” or “criminally” is not used. See form of indictments given in the statute. The use of the terms “deliberately,” “premeditatedly,” and “malice aforethought,” is unnecessary. The indictment is in the words of the statute, which is sufficient. See People v. Pettit, 3 John. 511. Premeditation, except as implied in the vnient to do great bodily harm, is not necessarily an element of the crime for which the party was indicted. The counsel for the defendant below asked the court to charge the jury, among other things, that “if the jury believed from the evidence that Garvey was in such a state of mind from any cause, that he did not know what he was doing, they could not rightfully convict of the charge in the indictment.” This instruction was given with the qualification, that “ if the defendant did not know what he was doing from being in a state of insensibility, the jury could not convict, but otherwise if from excitement or madness, the immediate consequence of indulgence in strong drink.” It does not appear that Garvey became intoxicated with a view to the commission of the crime, or that before his intoxication he had any intention of committing ■ such crime. The existence or non-existence of the malicious and felonious intent charged, was the principal [163] question to be passed upon by the jury. If Garvey was so drunk as “not to 7mow wTiat he was doing” then he had no intention; he was incapable of forming any intention, and any evidence showing this fact should have been admitted by the court. Regina v. Cruse, 8 C. & P., 511; Peyman v. State, 14 Ohio, 555. Such intention must m faet exist to justify a conviction under the statute of 1861. The charge of the court in this respect, was therefore we think erroneous. • It is not pretended that intoxication is in any case an excuse for crime, but when the intention of the party is an element of the crime, insanity of any kind, or from any cause, which renders the party incapable of forming any intention, and which is not voluntarily induced with a view to the commission of a crime while in that state, may be given in evidence to show that he is not guilty of the specific crime with which he is charged. It would not follow, because the accused was in this case intoxicated, that he did not intend great bodily harm to Callinan; he may have been intoxicated and still acted with this criminal intent. This was for the jury to decide from all the evidence in the case. ■ The prosecuting witness was asked on the cross-examination, whether he believed at the time the shot was fired Garvey intended to shoot him? The answer to this question was objected to, and the objection sustained by the court. Prom the evidence before us it does not appear that there was any error in this ruling. The prosecuting witness does not appear to have had any better means of judging as to Garvey’s intentions than the jury, and if so, his opinion on the point would not have been competent evidence. The judgment below is reversed, and new trial orde'red.