State v. McBride , 26 Wis. 409 ( 1870 )

Dixon, C. J.

The attorney general declined to argue this case, because hé thought the indictment bad; and in this he showed his good sense. The indictment is obviously too bad to sustain any kind of an argument, and much less a conviction. It is a mixture of heterogeneous and inconsistent statements and charges from beginning to end; and no one can say what offense is charged, or intended to be, whether murder, manslaughter, or a felonious and aggravated assault, or assault and battery.- It contains allegations tending to charge all these offenses, but they are all neutralized and avoided by each other. The charge, for example, that the acts were done willfully and of malice aforethought, is neutralized and made of no effect.by the charge that the same acts wére ignorantly done. If the indictment could be sustained for anything, it would probably be for manslaughter at common law, for death caused by the malpractice of the defendant as a physician and surgeon. But it is not good for that, and would be bad even as an indictment or complaint for a common assault. It is most illogical and absurd in its allegations. It charges the assault to have been made hy means of certain unlawful, felonious and false representations, knowingly, feloniously and willfully made by the defendant; and then follows the averment, “ by reason whereof, feloniously, willfully and of his malice aforethought, did violently squeeze,” etc. By this we understand the squeezing, etc., to have taken place by reason of the assault made by means of the representations, which is nonsense, and we can make nothing else'of it. We have read somewhere that to constitute an assault there must be an overt act, and that no mere words can ever amount to one. In other words, we understand that no assault can be committed by means of mere words; and the representations set forth in the indictment, however unlawful, felonious and false they may have been, or however knowingly, willfully or feloniously made, amount to no more. It is impossible that any court should spend its time in devising, or endeavoring to devise, reasons for sustaining such pleading as this. It cannot be done.

It may possibly be, among the many awkward and irregular indictments which have been drawn in the world, that a parallel could be found for this; but our reading does not extend so far. We know of nothing like it, except in the field of jocular law. The case of the northern circuit barrister, indicted in the Grand Court, for the murder of the chimney-sweeper’s boy, alleged to have been committed with “ a certain blunt instrument of no value called a long speech,” might be cited as a precedent. But that was a joke, and we should dislike to spoil it by affirming this conviction. It is against our principles to do so. That case will be found reported in Lord Campbell’s Life of Lord Eldon, Lives of the Lord Chancellors, vol. 7, p. 77.

By the Court. — The exception to the order overruling the motion in arrest of judgment is sustained, and the judgment arrested.