Benham v. State

Wright, C. J.

To reverse this judgment, several errors are assigned, which we will notice in the order presented.

It is first claimed, that the court erred in overruling the demurrer to the indictment. The causes assigned in said demurrer are as follows: First. There is no criminal of-fence known to the law, charged in said indictment. /Second, Said indictment is insufficient in law to compel him to further answer thereto. By the Code, section 2958,- it is required, that a demurrer shall distinctly specify the grounds of demurrer to the indictment, or it shall be disregarded, Under this section, the court was entirely justified in disregarding the demurrer, at least, so far as the second ground was concerned. Thai is entirely too general, and does not meet the plain requirement of the Code. This species of general pleading was designed to be cut off, and the defendant required to bring specifically and definitely to the mind of the court, and the opposite party, the precise objection taken. This was not done by the second specification.

As to the first ground, there may be more doubt as to its sufficiency in this respect. If by this specification, it is designed to raise the question, that the offence charged is not punishable by our law, then it may be sufficiently specific. But we cannot recognize the right of a party, under such general language, to point out particular defects in an indictment which charges an offence punishable under the law, though it may be technically defective. In this case, the offence charged is criminal by our law, and without stopping to inquire here, whether it is technically correct in all its parts, we think the demurrer, on this general specification, was correctly overruled.

*544 Again: it is claimed, that tbe court erred in giving certain instructions asked by tbe state, and overruling tbe defendant’s motion in arrest of judgment. We will consider tbe assignments together, as they both involve virtually tbe same question. Tbe state insists, tbat as defendant did not except to tbe giving of tbe instructions asked, at tbe time, be cannot now take tbe objection tbat tbejr were improperly given. If, however, tbe jury bad no right under tbe law, to find tbe defendant guilty of assault and battery on this indictment, then tbe objection was well taken in tbe motion in arrest of judgment, tbe same point arising in said motion as in tbe instructions. We, therefore, come at once to consider tbat motion. Tbe objections taken, are, first — tbat tbe verdict of tbe jury is not authorized by said indictment; second — tbat tbe law does not authorize a conviction for an assault and battery, under tbe indictment; third — that tbe court erred in giving certain instructions, which were, in substance, tbat if tbe jury should acquit tbe prisoner of tbe crime of disfiguring as charged, they might find him guilty of an assault and battery.

These objections present but one question. Could tbe jury, under this- indictment, find tbe prisoner guilty of an assault and battery? And, to our minds, this is of easy disposition. Tbe Code, after providing for special verdicts, in criminal cases, and tbe manner of entering judgments thereon, in section 8039, provides tbat, “in other cases, tbe defendant may be found guilty of any offence, the commission of which is necessarily included in tbat which is charged in tbe indictment. Tbe only question then is, whether tbe offence for which tbe defendant was convicted, is necessarily included in tbat charged in tbe indictment. In other words, whether there could be an intentional maiming and disfiguring of a limb, or member of the person of another, without committing an assault and battery. To our minds, tbe proposition only needs to be stated, to prove, itself. As every battery necessarily includes an assault, so does every intentional disfiguring- and maiming, under the law, include a battery, as well as an assault.

*545 The case of McBride v. The State, 2 Eng. 374, was, in many respects, similar-to tliis. McBride was indicted for biting off tbe ear of one Hubble, with intent to maim him. The jury acquitted the prisoner of the mayhem, but found him guilty of an aggravated assault. The question before the Supreme Court was, whether the court below erred in acquitting the prisoner of the intent to maim, and convicting him of an assault. Says Johnson, C. J., in delivering the opinion: “ Every attempt to commit a felony against the person of individuals, involves an assault. Prove an attempt to commit such felony, and prove it to have been done under such circumstances, that had the attempt succeeded, the defendant might have been convicted of the felony, and the party may be convicted of an assault, with intent to commit such felony. If you fail in proving the intent, but prove the assault, the defendant may be convicted of the common assault.” See, also, 1 ChittyCr. L. 638 ; Stewart v. The State, 5 Hamm. 241; State v. Kennedy, 7 Blackf. 233 .

The defendant insists, however, that as the indictment does- not allege an assault in charging the offence, therefore the verdict of the jury was not warranted; or that, while the major may include the minor offence, yet words must be used in the indictment, showing that" such lhinor offence was committed. If, however, the indictment charges an offence under the section of the law claimed to have been violated, then, we think, whatever offence is necessarily included in that charged, may be punished, though there may be no words specifically designating the offence so included. As already stated, every intentional maiming or disfiguring of a limb or member of a person, does necessarily include an assault and battery. To charge such disfiguring, with proper specifications as to the manner, time, venue, the person injured, and other matters known as the formal parts of the indictment, is sufficient, without alleging, in words, that the defendantj-rin so disfiguring, assaulted the person on whom the injury was committed, and this has been suffi *546 ciently done in. this case. 2 Archb. Cr. Pl. 263, 264; State v. Absence, 4 Porter (Ala.), 397.

Other objections have been urged in the argument here, which, however, go alone to the formal parts of the indict' ment, and do not tend to show that the facts stated do not constitute a public offence, or that the court below would have been justified in arresting the judgment. Without passing upon them in detail, it is sufficient to say, that neither the demurrer, nor motion in arrest of judgment, point to them with the particularity or precision necessary to bring them properly to the attention of the court below, much less here.

We think, therefore, there is no error in the judgment below, and it must be affirmed.