Birker v. State

Siebecker, J. In State v. Yanta, 71 Wis. 669, 38 N. W. 333, this court held that an information charging assault with intent to kill and murder could not sustain a conviction of assault with intent to do great bodily harm. The decision rested mainly upon the opinion in Kilkelly v. State, 43 Wis. 604, wherein defendant was convicted of assault with intent to maim and disfigure, upon an information charging assault with intent to murder. It was properly held in the [110] Kilkelly Case that such conviction could not be sustained, because the lesser offense is not necessarily included in the greater. The decision was based, however, upon a rule of criminal procedure. The court says: “Where offenses axe 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. Thus one indicted in the usual form for murder may be convicted of manslaughter, because, if the averment that the killing was with malice aforethought be negatived or stricken from the indictment, there remains a sufficient charge of manslaughter. . . . lienee, on this information, the plaintiff in error may lawfully be convicted either of an assault with the felonious intent charged, or of a simple assault and'battery, or of a mere assault.” The reasoning which controls this case goes rather to the form of the indictment or information, than to any distinctions in the nature and kind of offenses committed in the same transaction, as the basis for the procedure to be adopted upon the trial. The requirement to aver in form all of the different grades of offenses that include felonious intents which may be carved out of the same transaction does not appear to have been contemplated by the early legislation on the subject of criminal procedure in this state. Sec. 4695, Stats. 1898, was adopted in 1849, and has ever since been preserved in its original form as a part of the law. It provides: “Whenever any person indicted or informed against for felony shall on trial be acquitted by verdict of part of the offenses charged in the indictment or information and convicted of the residue thereof, such verdict may be received and recorded by the court, and thereupon the person charged shall be adjudged guilty of the offense, if any, which shall appear to the court to be substantially charged by the residue of such indictment or information, and shall be sentenced and punished accordingly.” In State v. Mueller, 85 Wis. 203, 55 N. W. 165, this court sustained a verdict of “guilty of an assault with the intent to commit the crime of rape” upon an information simply charg [111] ing the crime of rape, for the reason that “the proof necessary to establish the greater crime establishes every element of the lesser,” and that the lesser offense “was necessarily included within the crime charged in the information.” In Porath v. State, 90 Wis. 527, 63 N. W. 1061, the court, referring to sec. 4695, Stats. 1898, says: “This provision applies to the case of a single count in which the lesser offense is included in, or may constitute a part of, the greater one, of which the defendant has been acquitted.” The opinions expressed in State v. Yanta and Kilkelly v. State, supra, are clearly in conflict with those announced in the two cases last mentioned. The Mueller and Porath Cases Test upon the ground that the sufficiency of an information or indictment in cases where offenses are included one within the other should be determined with reference to the crime charged, on the principle that the greater charge includes the lesser. This follows because the offense springs from the same transaction, and the proof necessary to establish the greater offense establishes every element of the lesser. In Keefe v. People, 40 N. Y. 355, the court, in construing a statute of like import, says: “The true construction of the statute is that, when the act for which the accused is indicted is the same act for which he is convicted, the conviction of the. lower degree is proper, although the indictment contains averments constituting the of■fense of the highest degree of the species of crime, and omits to state the particular offense and circumstances characterizing a lower degree of the same crime.” This rule is followed in the decisions of many states as a well-established principle in the modern law of criminal procedure. People v. Prague, 72 Mich. 178, 40 N. W. 243; State v. White, 45 Iowa, 325; State v. Schele, 52 Iowa, 608, 3 N. W. 632; State v. Collyer, 17 Nev. 275, 30 Pac. 891; State v. Johnson, 3 N. D. 150, 54 N. W. 547; Beckwith v. People, 26 Ill. 500. [112] The information in the present case charges that the plaintiff in error, being armed with a dangerous weapon, did mate-an assault upon another with intent to murder*. The verdict declares him guilty of an assault with intent to do great bodily harm. All the elements of the offense charged are found, except the particular intent to murder, but that the accused had a different intent, namely, the intent to do great bodily harm. /It seems that an assault with intent to murder must, from the very nature of the acts constituting the offense, embrace an intent to do great bodily harm. It therefore follows that the offense of which plaintiff in error was convicted is necessarily included in the offense charged in the information, and we are of opinion that the information, as presented,, sustains the conviction of an assault with intent to do great bodily harm. This conclusion overrules the case of State v. Yanta, supra, and modifies the case of Kilkelly v. State, supra, in so far as it was made the basis of the decision in the-Yanta Gase. By the Court. — Judgment affirmed.