State v. Patrick , 3 Wis. 812 ( 1854 )

By the Court,

Crawford, J.

We believe that the indictment in this case is uncertain and defective. It does not charge an intent to murder any particular person.

The section of the statute under which we are informed by the report of the case, the indictment was preferred, (R. S., Chap. 133, § 32,) contains the following language : “ If any person shall assault another, with intent to murder, or to maim or disfigure his person,” <&c. ; to constitute the offence thus described, it is indispensable that the person to murder, maim, or disfigure whom the intent existed in the mind of the accused, be designated in some manner. "Without this, the .indictment would not contain that degree of certainty in describing the offence, which the rule of pleading in criminal cases requires.

Mr. Chitty (1 Chitty Cr. L., 228,) says, “The indictment must charge the crime with certainty and precision, and must contain a complete description of such facts and circumstances as will constitute the crime ; a statement of a legal result is bad,” and (p. 233,) “if the intention is necessary to constitute the offence, it must be alleged in every material part where it so constitutes it.

In 2 Hawk, P. C., chap. 25, § 71, it is said, “It seems to be taken as a ground in many books, that, regularly, the persons offended, as well as the defendant, ought to be certainly described in every indictment.” And in Archibald's Or. HI, 30, we find the rule thus stated: “In indictments for offences against the persons or property of individuals, the Christian and surname of the party injured must be stated, if the party injured be known. And again, on page 43 of Arch-bald, it is stated: “Not only must all the facts and circumstances which constitute the offence be stated, but they must he stated with, such certainty and pre-cisión that the defendant may be enabled to judge Aether they consitute an indictable offence or not,in or(jer that he may demur or plead to the indictment accordingly; that he may be enabled to determine the species of offence they constitute, in order that he may prepare his defence accordingly; that he may be prepared to plead conviction or acquittal upon this indictment in bar of another prosecution for the same offence ; and that there may be no doubt as to the judgment which should be given, if the defendant be convicted.”

Now, one of the material ingredients in the offence, contemplated by the section of the statute above referred to, is the intent on the part of the accused, to murder, (or maim or disfigure) some other person, and therefore the rule of criminal pleading requires that the averment of the intent shall include a designation of that other person.

It is true, we might infer from the averment of an assault upon Wethersbee, by the accused, that if an intent to kill and murder was coupled with that assault, it must have been to kill and murder the person^assaulted; but we arrive at such a conclusion by inference or argument only, and neither one or the other can be indulged in, or deemed sufficient to supply a deficient averment in an indictment.

The case of Connelly vs. the People, 3 Scam, 474, to which our attention has been directed by the Attorney General, is not in harmony with the authorities above cited. The provision of the Illinois code, seems to have influenced the decision, and the learned Chief Justice thinks that at the common law, the name of the person is necessary. We cannot recognize the case as binding upon ns.

We do not think it necessary to cite other authorities npon this point, certified to us by his honor, the judge of the Circuit Court.

We believe the indictment is fatally defective, and the judgment thereon must therefore be arrested.