Kruget v. State , 1 Neb. 365 ( 1871 )

Lake, J.

William and Christopher Kruger were convicted in the court below, of assault and battery, and each sentenced to pay a fine of one hundred dollars and costs. The case is brought here by proceedings in error to reverse this judgment.

It is objected that the court erred in overruling the motion to quash the indictment, and herein it is claimed that the commencement or caption is defective because of the omission of the word “chosen,” which we find in the form given in section 166 of" the Criminal Code. But it must be borne in mind that the statute does not require a literal copying of ■ this form into the indictment, but that it shall be substantially followed. We think there has been a substantial compliance with the requirements of this section, which is all that is necessary. The caption states that the grand jurors were . “selected.” The words, “chosen” and “selected,” have, in common parlance, the same meaning. They are used synonymously by the best writers and speakers. The use of both words in this connection would be mere tautology, a needless repetition of the same thing! Section 170 of the Criminal Code, provides that “ no motion in arrest of judgment, or writ of error, shall be sustained for any matter not affecting the real merits of the offence charged in the indictment.” Now I am quite certain that if the commencemerit to this indictment be tested by the sensible rule here laid down, it will bear the closest scrutiny. The omission of this word is of no importance, and I can but regard the objection urged as merely technical.

It is further objected, as ground of en-or, that the defendants were put upon trial without being first personally arraigned and. required to plead to the indictment. It is admitted that they were in court when their counsel, as is usual in cases of mere misdemeanor, on their behalf, waived the reading of the indictment and interposed the plea of not guilty. This the law permits. — Sec. 188 of . the Criminal Code.

■ The record shows, that during the progress of the trial, the jury were permitted to separate for the purpose of getting their meals and during the adjournments for the night. In this it is insisted there is error. There is no force in this objection. There is no law requiring the jury to be kept together at such times, nor has it been the practice in this State to do so, on the trial of any but capital cases. It is left entirely to'the discretion of the judge presiding at the trial of cases not capital, to determine whether the circumstances surrounding it, are such as require the jury to be kept together until the termination of the trial; and where there is no abuse of this discretion shown, it will not be interfered with. It is usual in case of separation, however, for the court to instruct the jury to . hold no conversation with any person respecting the case, . which admonition was given by the court below, and this caution is usually considered a sufficient protection against any outside influence. — McCreary v. Commonwealth, 5 Casey, 323 ; 1 Bishop Crim. Prac. 824.

It is true, doubtless, that the indictment in this case was based upon the second clause of section 49 of the Criminal Code, that by it the pleader intended to charge the defendants with a felonious assault, which would subject them to a fine, if guilty, not exceeding a thousand dollars and imprisonment in the county jail for a term not longer than one year. This was undoubtedly the theory of the case, as understood by both parties. This indictment is manifestly inadequate to sustain a conviction for a felony under the clause of the section last referred to. It fails to charge that the weapons, with which, the defendants made the assault, Avere “ deadly.” Neither does the name given to them import that they Avere such. They are simply described as being “ Aveapons, to Avit, wooden clubs.”

To Avarrant a conviction under this section, it is neces- • sary that the assault be made with a deadly weapon, or with some other instrument or thing, fitted to occasion death, in the use to which it is put. If it be a weapon, the ordinary name of Avhich, ex vi termini, imports its deadly character, e. g., a sword, gun or pistol, it would bé sufficient to describe it by such name ; but in other cases the instrument or thing used, should be described and charged to be deadly. But Avhile this indictment is defective for the purpose intended, it is good as one for an assault and battery merely. It charges an unlawful and outrageous beating of the prosecuting witness by the defendants, Avith much greater minuteness than is necessary in an indictment for an assault and battery. Whatever is charged that is unnecessary may be disregarded. Mere surplusage in an indictment will not vitiate it. And therefore ‘ where it alleges facts which constitute a misdemeanor it is good for that offence, although it state other additional facts which go to constitute a felony, provided all the facts' alleged fall short of the charge of felony. Although an áttempt was thus made to charge the defendants with a felonious assault, Ave háve before remarked that by omission of the word “ deadly ” in the description of the Aveapons used, it falls short of charging that offence, but does charge an assault and battery of which the jury found the defendants guilty. The indictment is ample to sustain the verdict rendered.

There is no complaint urged here that the evidence given upon the trial did not fully warrant the "conclusion at which the jury ai’rived. It is true that one of the grounds of the motion in arrest of judgment is that the verdict was against the weight of the evidence, but none of the testimony is preserved and this point cannot be considered at this time. I infer, however, that the evidence fully sustained the verdict and that no injustice was done to the defendants.

Several other errors are assigned, predicated however upon the insufficiency of the indictment to charge a felonious assault. Holding the indictment good for assault and battery disposes of these objections, and renders a further consideration of them unnecessary.

No substantial error appearing in this record, the judgment of the District Court must be affirmed.

Judgment affirmed.